Colbert Takes On First Sale Rights; Mocks Kirtsaeng Case

from the first-sale-goes-mainstream dept

Tue, Nov 27th 2012 10:37am — Mike Masnick

Copyright issues don't often become "mainstream" stories. SOPA was the exception, not the rule, and it only really went fully mainstream at the very end with the January 18th blackouts. But it's always nice to see when big copyright issues get some mainstream love. Stephen Colbert actually has covered copyright (and other IP) issues a few times on his show (perhaps because his brother is an IP lawyer). He was actually among the first on TV to cover SOPA. Still, it's a bit surprising to hear that he devoted an entire segment of his show to First Sale, and specifically the Kirtsaeng case that we've been covering. If you're in the US or one of the very small number of countries that Viacom's streams work in, you can watch it below (blame Viacom, not me, if you can't): For those who can't watch it, Colbert gives a basic explanation of what's at stake in the Kirtsaeng case, even calling out that the First Sale Doctrine was codified by the courts over a century ago (and then joking "I'm sorry, I don't buy this 'First Sale' argument... and if I did buy it, I would not resell it, because I don't have the right!"). Then he notes that the Kirtsaeng issue would only apply to goods manufactured outside of the US, and cracks a joke about how little is still manufactured in the US these days. After highlighting how this could hurt sites like eBay, he notes that he's planning a garage sale, and that he now needs to get permission from the copyright holders on any goods made outside the US... and proceeds to call up Elvis Costello to haggle with him over his plan to sell a vinyl copy of My Aim is True.

It may not be the funniest Colbert bit, but it's still quite amazing to see first sale issues get such mainstream coverage. Even though the Kirtsaeng case is at the Supreme Court and a certified "big deal," it's still pretty obscure outside of copyright circles. So it's great that it appears to be getting some mainstream love. Colbert uses clips from a few popular news shows discussing the case, including the O'Reilly Factor, again showing the issue is getting plenty of attention.

And, while we're used to commentators screwing up the details, Colbert mostly seems to get them right here (again, I wonder if he ran some stuff by his brother). It gets a little fuzzy at times when he seems to suggest that all goods are covered by copyright, but that can likely be chalked up to trying to simplify the explanation for the sake of lining up a good punchline. Of course, it's also worth noting that Colbert's bosses at Viacom are members of the MPAA (via Paramount, which is owned by Viacom), and the MPAA filed a ridiculous brief in the case that effectively argues that the US economy might collapse if the Supreme Court doesn't wipe out your first sale rights. It would have been really amazing if Colbert dug into the insanity therein...

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Filed Under: copyright, first sale, kirtsaeng, stephen colbert

38 Comments

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Anonymous Coward, 27 Nov 2012 @ 10:49am

After the "watcher" affair where the courts ruled that the watch had copyright protections and couldn't be imported without permission from the copyright holder, every single piece of hardware in existence is now covered by copyrights probably and they are all made in China.
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Chris-Mouse (profile), 27 Nov 2012 @ 10:50am

Consider Viacom blamed.

I could even live with Viacom's stupid regional licensing restrictions if they would redirect me to the 'proper' website in this country where I can watch it, but they're too lazy to even bother to do that.
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Chris-Mouse (profile), 27 Nov 2012 @ 10:51am

Re:
For those in Canada, it can be seen at http://watch.thecomedynetwork.ca/#clip814648
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Anonymous Coward, 27 Nov 2012 @ 10:55am

Typo
I hate to be the one doing this:

"Still, it's a bit surprising to hear that he devoted devoted..."

the word "devoted" is repeated.
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out_of_the_blue, 27 Nov 2012 @ 10:59am

Selling a vinyl copy is more TV show staging, not relevant.
From one of your prior re-writes the case is "reselling legally purchased works made outside the US". -- Never fear. Supreme Court can split that hair. Heck, I could split that one myself, it's more like tree. I'd bet "outside the US" is the key point.

My Fundamentals already cover selling a vinyl record:

) Possession of authorized physical media is license to access the content anynumber of times (which can be one-at-a-time library use, yet not "public"display). In the absence of physical media, there's no clear right to accesscontent, only perhaps an authorized temporary permission. But at no time doespossession of digital data confer a right to reproduce it outside of the termsand conditions as for physical media, no matter how easy it is to do so.

) Emphasizing an aspect of the just above point: digital data is even less"owned" by the purchaser than with physical media, not more.
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Michael, 27 Nov 2012 @ 11:04am

Re: Selling a vinyl copy is more TV show staging, not relevant.
Two things.

First - umm...what?

Second - what does reselling a vinyl record have to do with digital data?
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Anonymous Coward, 27 Nov 2012 @ 11:08am

Re: Selling a vinyl copy is more TV show staging, not relevant.
This is what I don't get. How do you think codifying into law and telling people that they're paying for something they don't own will actually help put money in the pockets of artists?

Oh, wait, now I do get it. You're out_of_the_asscrack. You're not really interested in solutions; you're only interested in disagreement.
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out_of_the_blue, 27 Nov 2012 @ 11:08am

Re: Selling a vinyl copy is more TV show staging, not relevant.
Clarification: commercial scale reselling will be stopped, NOT one item at a garage sale.

Just to try and remove a nit for you nitwits to pick at.
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Anonymous Coward, 27 Nov 2012 @ 11:12am

Colbert sounds..tired this episode, like he wasn't quite with it (must have been one hell of a thanksgiving weekend). Anyone else notice this?
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Anonymous Coward, 27 Nov 2012 @ 11:14am

Re: Re: Selling a vinyl copy is more TV show staging, not relevant.
What constitutes commercial? If I find a good deal on a lot of ten widgets, and then turn around and sell them for a profit, have I suddenly infringed on someone's rights? What if it's a lot of 100 or 500? Are people no longer allowed to make money buying and selling physical property without manufacturer's approval?
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Anonymous Coward, 27 Nov 2012 @ 11:14am

Re: Re: Selling a vinyl copy is more TV show staging, not relevant.
I didn't see that distinction in the law-books.
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Anonymous Coward, 27 Nov 2012 @ 11:14am

Re: Re: Selling a vinyl copy is more TV show staging, not relevant.
so Ebay would be in breech violation then as they are in the reselling business then.
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Anonymous Coward, 27 Nov 2012 @ 11:17am

Re: Re: Re: Selling a vinyl copy is more TV show staging, not relevant.
And Amazon too then.
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gorehound (profile), 27 Nov 2012 @ 11:19am

If I buy something then I intend on Owning it and I intend on the Right to Sell it Used.I do not care if it is from the US or Not.
Remember not a lot of stuff you would sell is even Made In The USA.
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Zakida Paul (profile), 27 Nov 2012 @ 11:24am

Re: Selling a vinyl copy is more TV show staging, not relevant.
"In the absence of physical media, there's no clear right to accesscontent, only perhaps an authorized temporary permission."

Ok, idiot, I'll bite. Why should someone who buys a digital copy of an album or movie not have the same rights as someone who buys a physical copy? I have spent my money on a product and I should be able to enjoy it any way I damn well please and as many times as I damn well please. To say that I am purchasing 'authorised temporary permission' is the most idiotic statement I have ever read. I have bought and downloaded an album to keep in the same way someone else has bought a CD to keep.
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Anonymous Coward, 27 Nov 2012 @ 11:26am

Re:
Or the parts and pieces inside that thing.

In a world economy, diluting the right of first sale is silly and non-productive. On my person at this moment, I only have 3 items that I am sure were produced solely in the US.

And about the textbooks, they were sold as used and if this guy can find a market for used textbooks, more power too him. Not surprisingly, just like the *AA groups products, most people think textbooks are outrageously over priced and are cheerfully buying the lower priced used books.

On a related note, Florida wants to have collage degree programs that are under $10K to obtain. I think text books will be a serious hurdle to this goal.
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Mike Masnick (profile), 27 Nov 2012 @ 11:29am

Re: Typo
the word "devoted" is repeated.

Picky picky. :)

Fixed fixed.
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Rikuo (profile), 27 Nov 2012 @ 11:58am

Re: Selling a vinyl copy is more TV show staging, not relevant.
" Possession of authorized physical media is license to access the content anynumber of times (which can be one-at-a-time library use, yet not "public"display). In the absence of physical media, there's no clear right to accesscontent, only perhaps an authorized temporary permission."

The word "licence" is anathema to me. Never say that disgusting word in my presence ever again.
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TheLoot (profile), 27 Nov 2012 @ 12:24pm

The funny part about that clip is him assuming Costello owns the rights to his own work.
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The Real Michael, 27 Nov 2012 @ 12:38pm

Cue industries which manufacture here in the U.S. outsourcing all the more in order to work around the first-sale doctrine.

We've finally reached the point where the corporations feel entitled to a piece of any and every transaction, even amongst private citizens (which is none of their business). Such would constitute theft of the public and double-dipping and beyond on already-purchased goods.
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Anonymous Coward, 27 Nov 2012 @ 12:40pm

...Is it wrong that I had to bootleg a connection and then phish for a card just to watch that video?
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The Groove Tiger (profile), 27 Nov 2012 @ 12:59pm

Re: Re: Selling a vinyl copy is more TV show staging, not relevant.
OOoohhhh I see! So you can't sell things commrcially, but you can sell them non-commercially! And probably you can't give things away for free for non-commercial purposes. It can only be free if it's for commercial purposes.

So basically, you can sell stuff as long as you don't get any money, and you can give stuff away for free as long as it's not free.

Gotcha.
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Anonymous Coward, 27 Nov 2012 @ 1:03pm

Re: Re: Re: Selling a vinyl copy is more TV show staging, not relevant.
In China it is about 500 copies of a DVD or approximately $7,000 worth of counterfeit goods. USA sued because they found it to be incompatible with TRIPS. The specific answer from the panel was something to this extend:

'�commercial scale� activity means something different than �commercial� activity. Specifically, the term �commercial scale� implies a certain size threshold and not a qualitative assessment of the purpose of the activity. Furthermore, according to the panel, the threshold cannot be interpreted in the abstract but varies with respect to individual products and markets. According to the panel, �counterfeiting or piracy �on a commercial scale� refers to counterfeiting or piracy carried on at the magnitude or extent of typical or usual commercial activity with respect to a given product in a given market.�[5] In any given case, commercial scale �may be large or small. The magnitude or extent of typical or usual commercial activity relates, in the longer term, to profitability.�[6]'
http://www.asil.org/insights090403.cfm

Or in human language, commercial scale is specific and not abstract, but it does make a claim about profitability being needed. In reality it is a non-statement as to the validity of the chinese definitions.

In other words: Commercial scale is almost completely undefined internationally and that is what is making out_of_the_blues argument so weak.
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jupiterkansas (profile), 27 Nov 2012 @ 1:24pm

Re:
Turkey will do that do you.
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jupiterkansas (profile), 27 Nov 2012 @ 1:26pm

So nobody submitted the O'Reilly Factor clip to TechDirt?
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Anonymous Coward, 27 Nov 2012 @ 1:33pm

It would be really dumb if they mess up first sale doctrine for greedy companies.
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Robert (profile), 27 Nov 2012 @ 1:41pm

Re: Re: Re: Selling a vinyl copy is more TV show staging, not relevant.
You just made my day!

Thank you! Thank you very much!
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Anonymous Coward, 27 Nov 2012 @ 1:54pm

Re: Re: Selling a vinyl copy is more TV show staging, not relevant.
Huh? The court case under discussion is about someone who bought legal BOOKS overseas, then tried to sell them in the USA. The argument is that "first sale right" due to the wording of the law, only applies to goods made in the USA.

So any physical or digital(?) or other goods that embodies a copyright (or trademark? Brand?) that was manufactured outside the USA would not be resellable in the USA without permission.

It would not apply to USA copy, but an imported vinyl album would be protected from resale.
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Anonymous Coward, 27 Nov 2012 @ 2:25pm

Colbert video link. Works in Switzerland.

http://www.colbertnation.com/the-colbert-report-videos/421501/november-26-2012/judge --jury---executioner---copyright-law
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Anonymous Coward, 27 Nov 2012 @ 2:30pm

To my knowledge, Swiss patent law does not recognize the first sale right. On this basis, Swiss companies selling their patented articles in non-Swiss Europe are permitted to impose contractual restrictions on re-importation of the final goods, even after passing through several owners. I read this in the paper here.
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Titania Bonham-Smythe (profile), 27 Nov 2012 @ 3:24pm

Re: Re: Re: Re: Selling a vinyl copy is more TV show staging, not relevant.
Commercial scale is when someone notices that you are earning money and wants it for themselves.
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Anonymous Coward, 27 Nov 2012 @ 3:26pm

Re: Re:
If Florida wants college degrees under $10k I am pretty sure that textbooks will be less of an issue than you think. If you have access to a printer, I guarantee you that there are free texts they can use. Print the pages as douplex for each book and supply ringbands and access to a hole-machine and you have a decent quality book for 40$ at most unless the toner and paper is exceptionally overpriced in the US. Actually I have a couple such books from university. If you want a real softback for the pages, it is not actually any more expensive or that much harder to make. 40$ for each book will make for a total of maybe $1200 through 3 years. I think it is pretty workable even at double that price. The professionally created books are of course more expensive, but you really do not need them. Heck, I had a year at university with no published books used and only printed copies (with web-access we could find the articles and get the professors materials). If you know the right professors at universities you will be able to get access to quite a lot of freebees.
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RD, 27 Nov 2012 @ 4:39pm

Re: Re: Selling a vinyl copy is more TV show staging, not relevant.
"Clarification: commercial scale reselling will be stopped, NOT one item at a garage sale."

Unless you are a 9 year old girl who tried (but wasnt successful) at downloading a single song. Then you get to have a full SWAT tac team come to your home, destroy your front door breaking in, and take your laptop away and make you fear for your life. Because, you know, thats what copyright was created for.

Idiot.
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Anonymous Coward, 27 Nov 2012 @ 5:14pm

oooh i'm using a vpn for the first time, and it works! yay from australia.
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Anonymous Coward, 27 Nov 2012 @ 6:44pm

Laser printing actually expensive
If you want more than a few hundred copies of something, it starts to become worthwhile to get it commercially printed (the break even point varies, but it is usually below 1000 copies). YOu could easily reach that with a lot of textbooks at a mid-sized university, even if they were uni-specific print runs, as you can use the same book for at least 3-5 years (and for books like Calculus 1, my dad's book is virtually identical to mine).
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MrWilson, 27 Nov 2012 @ 7:41pm

Re: Re: Selling a vinyl copy is more TV show staging, not relevant.
Not to mention the fact that some things simply cannot be purchased on physical media. There are plenty of small software companies that just don't waste time and money producing CDs and DVDs of their software when the internet is a perfectly viable and cost-effective medium for distributing their products. Suddenly they get more control over the product than someone who bothers to waste money on manufacturing a physical good for a person to purchase?

The thing OOTB is missing is that many products are just vehicles for their content. The physical textbook is just a vehicle for delivering the lessons therein. You can separate the words from the paper they're printed on. You can digitize a textbook. That act of digitization doesn't confer upon the manufacturer any more rights than they had when the words were still on paper.
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TRISH, 28 Nov 2012 @ 7:33am

never mind his brother
Of course colbert reads techdirt.
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Stephen, 28 Nov 2012 @ 9:27am

so much for Wiley's new logo
Wiley has been rolling out a new logo for months. Looks like the effort's failed. Colbert used the old one.
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