Supreme Court Will Decide If You Actually Own What You've Bought
from the yes,-it's-come-to-this dept
We've written about the Wiley v. Kirtsaeng case many times already, but it's an important one to follow. While everything else in DC closed down to bunker down for Hurricane Sandy, the Supreme Court Justices decided to soldier on and actually hear the case today. Joe Mullin has written up the most thorough and detailed examination of the case, including the fact that Kirsaeng is merely the first, and most well-known case brought by copyright holders trying to stop them from reselling legally purchased works made outside the US. Copyright holders love the fact that Kirtsaeng is the central case here, because he earned a lot of money -- so they can argue that he's somehow "unfairly" profiting from international arbitrage. But, as Mullin notes, lawsuits have been brought against many others who were selling a lot less.Copyright holders keep trying to downplay the "horror story" scenarios that many of us worried about a ruling in favor of Wiley could lead to. However, if the Supreme Court says that it's copyright infringement to sell a copyright-covered work made outside the US, but legally imported in, you can bet that all sorts of companies will seek to take advantage of this fact. We've already talked about the predecessor case here, Omega v. Costco, in which merely putting a copyright image that no one would see on the back of a watch could open up the ability to block resale of physical products. While Omega eventually got smacked down in the lower court, that was for copyright misuse -- the first sale issue stuck. So, all companies need to do is slightly modify the way they use copyright, and they can ban your ability to resell products.
If you believe in basic property rights, this should freak you out. It's kind of funny to see the MPAA and RIAA -- who like to pretend they're in favor of property rights -- right upfront in arguing against it here.
While it's pretty rare to see "activism" around a Supreme Court case, the folks at Demand Progress have put together a campaign called You've Been Owned to speak out about this. While that won't impact the Supreme Court, they're right that this issue is going to matter in Congress eventually. Whichever side loses this case is going to run to Congress with pre-written legislation to "fix" the Court's ruling. If you believe that you should own what you bought -- even if it's made in a foreign country -- then this is a case to pay attention to, and to be ready to speak out about when the inevitable legislative "fix" is introduced.
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Filed Under: copyright, first sale, kirtsaeng, ownership, property rights, supreme court
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Yep. We're fucked.
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Um. You're confused. Both of the rulings you're talking about are appeals court rulings -- NOT SCOTUS. SCOTUS split on Costco so no ruling there. It's the appeals court ruling that stands in that circuit. And the gene patents case was sent back to CAFC after SCOTUS ruled (smartly) against medical diagnostics, but did not rule on the Myriad (genes) case yet.
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It's the content, not the physical media, Mike.
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Re: It's the content, not the physical media, Mike.
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Re: It's the content, not the physical media, Mike.
Then again, you admitted it in the "Copyright is not a human right" article, when you admitted you don't argue for copyright, but merely to antagonize us.
Anyway, I'm gonna correct your stupidity anyway.
If I'm in the US and go on to say Amazon and buy a book from a US seller, I've bought it and I own it. I can resell it if I choose. Copyright law can't stop me there.
However, you support the view that a buyer should lose his ownership rights to the book if he buys the book from abroad. Do you not realise the implications of this?
People won't want to buy a book they are told is illegal for them to resell.
Besides, as others have pointed out, the publisher wants to have their cake and eat it too. They argue that a book published abroad is not "lawfully made under copyright law" yet argue that they still deserve copyright protection. Like with the licence v sale debate with digital music, you can't pick and choose. Either its made under copyright law and thus the buyer can resell his books, or its not made under copyright law and the publisher cannot receive copyright protections.
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Re: Re: It's the content, not the physical media, Mike.
I am against this interpretation, but for a specific reason. If its not made under copyright law, its an illegal copy here in the US, and therefore you, the consumer, has no rights either. You don't have the first sale doctrine to stand on.
Then again, you are looking at it wrong. These copies ARE produced under copyright. But they use region-based pricing so that although the book is worth $300 in the US, its only worth $100 in India (as an ass-pull example).
The "have their cake and eat it too" argument is that either these copies are lawful under International copyright law, and should continue to be sold in India with valid first sale rights, or they are not, in which case they need to sue the publisher in India (themselves) for undervaluing the product.
But this is all window dressing for the real war. Region-based pricing. Its the reason we pay twice as much as India for consumer goods, and Australia pays twice as much as us. And in a global economy, it can only be supported by using regional legal bodies to enforce the pricing scheme.
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Re: Re: Re: It's the content, not the physical media, Mike.
Copyright law is all that prevents me, the consumer, from exercising any of the rights reserved for copyright holders. How, then, can a work not made under copyright law be one which I'm not allowed to copy? The only reason I don't have the right to make copies is that copyright law prevents me from doing so.
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Re: Re: Re: Re: It's the content, not the physical media, Mike.
To clarify my statement, it should read "If its not made legally under copyright law." You are setting up your own Have your cake argument as well. You claim that because "its 'not illegal' for me to make copies in country X, I can make said copies and sell them to Americans and get around copyright", while agreeing with an article that says "it shouldn't matter where the copy was produced". My argument is designed to agree with the theory that in a global economy, the laws regarding ownership and first sale should not change.
I would argue that if the copies being sold in this case were produced/sold unauthorized (namely, the copyright holder is not producing/selling them), then they are not legal to sell in the US, because the initial production/sale was in violation of the Berne Convention. However, Whether or not production and/or sale occurs in a country that is a signer of the Bern Convention, if those copies were authorized, then the 'rights holder' loses his ability to control distribution beyond the first sale, by the Bern convention.
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Citizens don't violate treaties
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Re: Citizens can violate treaties
So tell us how "the supreme law of the land" does not apply to mere mortal citizens.
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Supreme law of the law
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tl;dr: Berne, according to itself, Congress, and the courts, is not the law of the land.
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Re: Citizens don't violate treaties
Now, you say that "The legality of a citizen's actions is stipulated by law, not by treaties." What law applies in this case? The country of sale? My argument is that if a "rights holder" releases in a country (willingly) that does not hold to the Bern Convention he, as the AC suggests, waives his rights to Bern-Convention-based international copyright protections. However if some pirate releases his work in a country without said protections, he shouldn't lose those protections when those works return to the US. That is the distiction between the argument AC posted and the arguement I posted. If its an authorized sale, its legally yours, if the sale is unauthorized, you shouldn't be making money on those illegal copies.
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Re: Re: Citizens don't violate treaties
The books in this case were not illegally produced copies; they were copies whose production was made with the full authorization of the copyright holders, purchased on the open market in full compliance with the laws (of the nation in which they were sold), and legally imported into the United States. Given those circumstances, how could a U.S. court apply the copyright laws of this other nation to the case at hand?
Notwithstanding attempts at harmonization through the Berne Convention and other treaties, copyright law varies sharply from nation to nation. Many nations do not have Fair Use exceptions similar to those of the U.S., but then they have greatly diminished penalties for similar activities they might actually deem infringing -- or they might not even deem such "Fair Usage" as infringing for other reasons (some nations do not consider personal, non-commercial copying to ever be infringing). Would the plaintiffs in this case have any claim whatsoever if the nation where these books were purchased recognized a doctrine similar to the U.S.'s First Sale doctrine?
Even if you were to consider it reasonable for U.S. courts to be deciding liability based on the copyright laws of another nation (something I myself could not imagine), what about differences in legal systems between the world's various nations? Are U.S. courts to follow the civil law procedures of Germany or France when the books are imported from that country? The religious law procedures Saudi Arabia or Egypt when that is the country of origin? The hybrid legal procedures of Canada or Israel?
I don't see how U.S. courts can decide based on anything but applicable U.S. law -- a task in itself hard enough. U.S. citizens deserve to be tried by U.S. courts based on U.S. law under the U.S. legal system. Anything less would be not only unjust, but untenable.
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Re: Re: Re: Re: It's the content, not the physical media, Mike.
A key point I forgot to explictly include: "a work not made under copyright law be one which I'm not allowed to copy" is a misinterpretation of my argument. Its a work, produced under copyright, copied 'outside' of copyright. That's what we are talking about here.
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Re: Re: Re: Re: Re: It's the content, not the physical media, Mike.
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Re: Re: Re: It's the content, not the physical media, Mike.
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Re: It's the content, not the physical media, Mike.
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Re: It's the content, not the physical media, Mike.
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Re: Re: It's the content, not the physical media, Mike.
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Re: Re: Re: It's the content, not the physical media, Mike.
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Re: It's the content, not the physical media, Mike.
Bullshit. If I go to a store and buy a book, *I* control it. I own it. I can do whatever I want with it. I can read it, rip it up, burn it, give it away, WHATEVER I WANT.
The publisher/author no longer controls or owns that copy.
That is what this case is about.
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Re: It's the content, not the physical media, Mike.
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We've reached the point that copyright needs to be abolished if this happens. It's no longer a sane reaction to the real world.
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In fairness to the MPAA and RIAA
In fairness to the MPAA and RIAA, for the past several years they have stood consistently and clearly against existing basic property rights. Do you have any examples of them pretending otherwise? I haven't seen it.
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Re: In fairness to the MPAA and RIAA
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Re: In fairness to the MPAA and RIAA
ftfy
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What will be this ruling's applicability?
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They've clearly shown that they don't give any consideration to the average person any more.
Frankly, if products made outside the US aren't "legally" made under the copyright act, I don't understand why they should have any copyright protection at all.
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And they wonder why people pirate
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Piles of Unsellables
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Re: Piles of Unsellables
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Oh it wouldn't be hard to imagine the chain of events from such a ruling at all...
1. Economy takes a massive hit, as every company that can shuts down local production of their products, and moves all production overseas.
2. All companies that were able to take advantage of step 1 now only sell products that are manufactured overseas, allowing them to use the law to shut down or massively damage the used goods market. Economy takes another massive hit.
3. Lack of competition in the form of the used goods market allows companies to raise prices as much as they care to, reducing by a good portion the number of sales, as more and more people simply can't afford the products anymore. Economy takes another hit.
4a. Companies see a reduction of sales, and do what they've always done, and whine to the government that 'It's those criminals hurting our sales again, that's the only possible reason our profits could be decreasing!'
4b. Politicians, who these days seem to have the cognitive functions, pattern recognition skills, and ability to understand any info that doesn't come with a donation attached to it as a week dead slug, pass even more idiotic laws to try and 'fix' the problem, inevitably making things even worse.
(And because I just couldn't resist)
*Skipping ahead a few steps...*
23. Cthulhu arrives, takes one look at the mess the US is in, and determines there's not really anything he could do to make things any more chaotic. Proceeds to go back to sleep for a couple more eons.
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2b) Special police force established to bust little old ladies holding garage sales.
4c) Golden Dawn type neo fascists gain political influence
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practice of discounting books.
So your premise is that Wiley is discounting books so deeply that they are selling at a loss?
Or are they priced at the best price they can hope to get in that market?
Does this mean they are inflating the prices charged in the US and other markets?
If they can sell these discounted texts and still make a profit, one has to wonder if their pricing elsewhere is just due to their absolute control of the market and IP laws keeping others from covering the same topics.
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That's part of the reason they bother with the overseas markets: it helps to suppress the local industry and prevent competition.
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They have no competition and no controls over what they do. You can't very well vote with your wallet when the text is "required" by the school even if you only use 5 pages out of it in the end.
I guess their greed will have damaging effects on the American economy and education system, when it is very clear they can create and sell the texts well below what they charge here. They have control over the market, agreements to be picked with schools, all at the expense of people trying to better themselves through education.
Your argument seems to be Kirsaeng is a horrible person for showing the world they are ripping Americans off. Think about it, he purchased, imported, sold all of these books and managed with all of those additional costs to sell it for less and still make a killing.
This case is not just about someone importing some books, this case is about when you buy something is it yours. Do we have to give even more rights and control over to corporations for things we purchase? And why is it when all of these rights and controls they refuse to replace these items. They pretend they are still their property, it seems that they should be forced to maintain it for the owner for a lifetime.
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But I don't think for a moment Kirsaeng was making a statement. He was simply exploiting a loophole for his own personal financial gain. Whatever you think of the law doesn't change what will happen. If Kirsaeng wins, the publisher will simply raise the foreign price so as not to have to compete against its own product. Those developing nations educational systems will suffer as a result. All because of Kirsaeng's profiteering.
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This is capitalism at its finest. See an opportunity, take advantage. If you can buy something elsewhere cheaper and still make money bringing it home and selling it cheaper than the local companies, then they are inefficient or gouging, and deserve to lose out.
Something people haven't thought about is secondary First sale situations. What happens if you find two copies of a US book in a London flea market - one is the US edition, one is the English. Both are 'legal' under UK law. You buy both and bring them home to the US. Are either of them 'breaking the law'? If they are, WTF?
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As for Milk and Gas? Other market forces are at work. Factor one is the fact that milk in a California store can not, by any means, be a physical substitute for milk in a Florida store. Same for gas stations that are widely disbursed. More generally, the same can be said for many goods with floating price points over the country. Hell prices for some goods change depending on the store or part of town you are in. But for consumer goods where time and location stop being concerns, the supply and demand concerns change. Price points do not fluctuate much if at all. Barnes and Noble in New York sells my favorite trade paperbacks for the same cost as the Barnes and Noble in Belton, MS. Because that Belton copy can be a real substitute for the New York copy. The same for Electronics, Video Games, music, movies (DVDs, theaters are subject to time and location constraints) Despite a widely varying COL over this country, most consumer goods do not vary much, and that in the fault of the Federal government preventing tarrifs on interstate goods and more recently the internet allowing better price checking.
The fact is, we now know textbooks have some of the highest markup over Cost of Production as any good. And even in non-innovative industries (say, low-level accounting), new textbook versions keep being released to justify the need for both high prices (Kepp adding more fixed costs) and the depression of secondary markets (changes to review questions invalidate the use of older versions when teachers update).
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Funny how those many billions of tax dollars are funnelled through similar loopholes as Kirtsaeng used, but nothing. Zip, Nada, Zilch and Bupkis called. They want their standards back.
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As a business in the United States, you are not afforded a magic wand to make everything work the way you want. Sometimes a competitor comes in and does things better so you need to adapt to remain competitive.
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FTFY
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Finally, who is this nameless competitor? It will almost certainly be American or American controlled as the US has sets the standard for high end medical/scientific texts. This is NOT a market that lends itself to price competition like Grade A wheat.
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The ridiculous prices that textbook manufacturers charge here will actually have to come down.
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If Kirsaeng prevails it will end the practice of discounting books in developing economies, rather than being forced to compete against themselves.
If Kirtsaeng prevails, importers will be able to purchase a publisher's product, ship it somewhere, and sell it. If publishers are unable to compete against their own product, it's not the fault of someone arbitraging international markets.
If Kirtsaeng doesn't prevail, and publishers shut out imports while continuing to ramp up their prices, they will only drive more people to piracy and free or open alternatives.
Frankly, it'd be more fun for me if the publishers "win" this case. When/if first sale rights go down, my hostility towards imaginary (intellectual) property laws will turn into actively encouraging breaking those laws at every opportunity as the only sane course of action.
In the end the loser will be the education system in developing nations due to greedy profiteers like Kirsaeng.
If the publishers lose the case and "retaliate" by jacking prices up in other countries, once again, all they are doing is driving more people towards piracy and free or open alternatives. This is a battle they can not win. They can not fight the market forces against them forever - and the longer they fight, the harder they'll fall at the end.
It's amusing to see them try, though.
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It seems as though Washington's sole purpose is to corrupt and destroy this country at its very marrow. Seriously, what do these people do for our benefit? When do they actually "defend freedom" like they swore an oath to do?
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Besides we're also not talking about national defence. We're talking about the 'rich' being able to buy the laws that suit them. Hardly 'laissez-faire' capitalism! Why, it's almost 'communist'! :)
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Well done.
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Transcript posted
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Basically, Wiley's representatives are arguing that First Sale DOES NOT APPLY to Kirtsaeng because of a modifier on the phrase "Lawfully made" from 1976.
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And, as usual, Justice Breyer is a goddamn hero.
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Should SCOTUS decide that Used Sales is not cool and we do not own what we buy then this will happen:
I will never buy another book, film, or music again for the rest of my life.
I will use the Library at least while we still have those.
I will just use P2P and VPN, ETC to download illegally stuff as there is no point in me spending money on something I do not own.
I will hope to see Millions of Normal Americans get more angry at MAFIAA, ETC.
Not owning what we buy means why bother buying anything ? No way I will.
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Because people will not stand for this copyright crap forever, and I've come to believe that the only way to get a meaningful reform is for copyright problems to become so bad, for so many, with such obvious stupidity, that radical change becomes possible.
(Don't extend this way of thinking to other areas.)
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