Two And A Half Minute Video Explains How The Ability To Sell Stuff You Legally Purchased Is At Risk

from the you've-been-owned dept

Mon, Mar 4th 2013 8:06pm — Mike Masnick

As we wait patiently for the Supreme Court to decide the Kirtsaeng case, concerning whether or not you can resell goods that were made outside the US but that can be covered by copyright inside the US, the folks at Demand Progress have put together a nice two and a half minute video highlighting the possible consequences of a ruling that goes against first sale rights and limits your ability to freely sell items you legally purchased. While it may seem premature to be discussing this before the eventual ruling, having more people understand why this is a vitally important issue is helpful, so that we can either push for legislation to fix a bad ruling, or (hopefully) resist a push in the other direction by companies seeking to stomp out first sale rights.

Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.

Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis.

While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.

–The Techdirt Team

Filed Under: copyright, first sale, kirtsaeng, supreme court

92 Comments

If you liked this post, you may also be interested in...

Reader Comments

Subscribe: RSS

View by: Time | Thread

This comment has been flagged by the community. Click here to show it

Anonymous Coward, 4 Mar 2013 @ 8:16pm

What utter horseshit. Too bad there's no Oscar for animated FUD shorts. The most absurd parade of horribles ever.
[ link to this | view in thread ]
Anonymous Coward, 4 Mar 2013 @ 8:21pm

"Because Fuck You."
The Corporate America Mantra.
[ link to this | view in thread ]
This comment has been flagged by the community. Click here to show it

out_of_the_blue, 4 Mar 2013 @ 8:23pm

Be silly that reseller rights are more than the creators.
IN THIS CASE. Bet ya half an avocado that the Court can split the hairs and let the obvious ruling stand: the creator of (intellectual property) doesn't entirely lose licensing restrictions merely because some sleazy grifter sees opportunity to undercut prices in the US.

IF you say that licensing terms in this clear instance don't extend to obvious degree, then you really do undermine all copyright, even the Creative Commons terms.

Copyright isn't just physical possession of media. The rights of a reseller can't possibly even exist until a creator has put the content onto media. Therefore, EVEN IF the media is already in existence, the reseller's rights are always secondary.

Take a loopy tour of Techdirt.com! You always end up at same place!
http://techdirt.com/
Where arrogance meets ignorance to discuss what they'll do with someone else's 100 million dollar movie.
[ link to this | view in thread ]
Anonymous Coward, 4 Mar 2013 @ 8:52pm

Re: Be silly that reseller rights are more than the creators.
it's more silly to think that a creator gets any say about how an item is disposed after he's sold it to someone else.
[ link to this | view in thread ]
Anonymous Coward, 4 Mar 2013 @ 8:54pm

Why is the supreme court not realizing how terrible this is?
[ link to this | view in thread ]
Robert (profile), 4 Mar 2013 @ 8:56pm

Re:
CopyThatFloppy was much worse, more FUD and way more horseshit than the video above!
[ link to this | view in thread ]
D_train, 4 Mar 2013 @ 9:02pm

Where's the argument?
You've failed to make an argument that's valid enough to change the status quo.

How exactly does the reseller have more rights when he has to pay to ship the property?

And I think what you call "licensing restrictions" is actually being charging more depending on your geographical location. How can you justify this for digital works?

What you describe is not what copyright was intended for.
[ link to this | view in thread ]
Rosie, 4 Mar 2013 @ 9:09pm

Don't Abolish For Sale Law
This discrimination will cause a war on imports in other countries. Which will ruin the global financial system. Therefore, no the First Sale law should not be abolished.
[ link to this | view in thread ]
Anonymous Coward, 4 Mar 2013 @ 9:13pm

I'm kind of surprised that the case was ruled against Kirtsaeng in the first place, considering that there is case law precedent that goods manufactured and sold oversees are governed by first sale.

http://itlaw.wikia.com/wiki/Red_Baron_v._Taito

�Taito�s initial sale in Japan of the circuit boards for Double Dragon extinguished all rights that it had under copyright laws.�

Even the stricter final appellate ruling that claimed that the defendant had no right of public performance admitted that first sale waived the distribution aspect of that right:

�the first sale doctrine has no application to the rights of the owner of a copyright guaranteed by �106, except the right of distribution."

So yeah, first sale brought up as being valid in a case regarding goods manufactured and marketed abroad. How was this not brought up before?
[ link to this | view in thread ]
MrWilson, 4 Mar 2013 @ 9:20pm

Re: Be silly that reseller rights are more than the creators.
No, it's not silly at all. It's logical. A creator's work is valuable because people want it. A reseller might purchase a book (or even a car) with the thought in mind that the price is more than they prefer to pay, but might be worth it if they can resell it later for a not-too-diminished value once they're done using it.

Restricting a purchaser's ability to resell diminishes the value of the work itself. Ironically of course, if you removed the right of first sale from products, the prices for those products would go up because the copyright holders would have even more of a monopoly on their products than they already do.

Tell me this: even if it could be argued that creator's should have more control over their works as you contend, would that amount of control be worth the further impoverishment of the poor and middle classes in our society? After all, when prices go up, only the wealthy copyright holders will be profiting. If I have to pay more for groceries because my carton of soy milk has copyrighted images on it, I'm not going to start giving more money to artists or patronizing luxury goods and services like movies and music.
[ link to this | view in thread ]
Anonymous Coward, 4 Mar 2013 @ 9:40pm

What about agriculture?
The fertilizers used depend on fuel shipped from middle east
so are any crops certified for legal sale, that effectively contain resold energy resources from abroad?
[ link to this | view in thread ]
Anonymous Coward, 4 Mar 2013 @ 9:41pm

Re:
"Corporate America" is redundant.
[ link to this | view in thread ]
Anonymous Coward, 4 Mar 2013 @ 9:44pm

Re:
How is it "FUD" when a reality of bad copy'right' law is already here?
[ link to this | view in thread ]
Forest_GS (profile), 4 Mar 2013 @ 9:46pm

Re: Be silly that reseller rights are more than the creators.
We wouldn't need to worry about it as much IF copyright terms were reasonable in the first place.
[ link to this | view in thread ]
John Mitchell, 4 Mar 2013 @ 10:21pm

1908 was not the beginning
Most commentators peg 1908 as the year that the Supreme Court recognized the so-called "first sale doctrine" (which, since codified in 1909, has never required that there be a sale at all, first or not). In reality, the Supreme Court first recognized that "copies" and "copyrights" are separate, and the sale of one does not control the other, as far back as Stevens v. Cady, 55 U.S. 528 (1853).
[ link to this | view in thread ]
Anonymous Coward, 4 Mar 2013 @ 10:21pm

Re: What about agriculture?
What if I am in San Diego and decide to head down to the border for some Taco Bell. The taco supreme is only 99 pesos instead of 99 cents so this is a good deal. Suppose I only finish half of my taco supreme on my walk back and find a willing buyer for my second hand item. Will this taco supreme court ruling affect my taco supreme sale? If so, wtf.
[ link to this | view in thread ]
Anonymous Coward, 4 Mar 2013 @ 10:25pm

Re:
"Why is the supreme court not realizing how terrible this is?"

The Supreme Court wasn't able to realize how terrible corporate money would be in politics/campaign's either; 'Corporations are people' and 'Money is the same as free speech/voting'. Welcome to the new Orwellan world.
[ link to this | view in thread ]
John Mitchell (profile), 4 Mar 2013 @ 10:27pm

Re: Re: What about agriculture?
It would not affect your sale of the taco itself, but it would affect the sale of any wrapper containing copyrighted text or images. Crazy, I know. Some video games have a copyrighted disc made in the USA and copyrighted packaging made abroad.
[ link to this | view in thread ]
John Mitchell (profile), 4 Mar 2013 @ 10:33pm

Re: Be silly that reseller rights are more than the creators.
You have it exactly backwards. The Copyright Act specifically says that the right of the author to distribute copies of the work is "subject to" the right of the owner of the copy to distribute it without permission from the copyright owner. That is, you can't get a copyright without it being subject to the superior right of the copy's owner to lend it, sell it or give it away. And that makes perfect sense. It is quite common for us to own the tangible medium (paper, USB, computer hard drive) before the copyrighted work becomes embodied in it, making it a "copy" under the Act. If I own a piece of paper and you license me the right to reproduce your poem onto it, I still own the paper, and have the right to sell it. It should make no difference that I happened to be in Ontario at the time I reproduced it onto my paper.
[ link to this | view in thread ]
Anonymous Coward, 4 Mar 2013 @ 10:39pm

Re: Be silly that reseller rights are more than the creators.
Be prepared to digitally send a lot of half avocados, mate.
[ link to this | view in thread ]
cpt kangarooski, 4 Mar 2013 @ 10:46pm

Re:
Well, after having seen wristwatch and shampoo manufacturers use copyright to attack resellers, and record labels and movie studios use copyright to attack individuals, I'd say it's an accurate enough parade of horribles.

The faucets thing was a little out there, but it's arguably possible to have a decorative design on a faucet which is separable from the functional part of the faucet, and thus get through the utility doctrine.

Is there some specific example that they mentioned which could not be impacted by a bad decision here?
[ link to this | view in thread ]
Anonymous Coward, 4 Mar 2013 @ 10:58pm

Re: Re:
He thinks it's FUD because he doesn't believe in bad copyright law.

For people like him copyright law is only bad because it could last another 20 years longer than it already does.
[ link to this | view in thread ]
Anonymous Coward, 4 Mar 2013 @ 11:04pm

Re: Be silly that reseller rights are more than the creators.
You seriously can not believe all the things you say. you are like a bag of skittles... a sweet contradiction.

Taks a loopy tour of OOTB's comments Where logic need not apply (im sure parody laws protect this)
[ link to this | view in thread ]
This comment has been flagged by the community. Click here to show it

Anonymous Coward, 4 Mar 2013 @ 11:09pm

You are literally satan, Michael Masnick, I don't have a retort for this article but you are literally destroying the very fabric of society with your existence.
[ link to this | view in thread ]
Anonymous Coward, 4 Mar 2013 @ 11:12pm

Re:
derp
[ link to this | view in thread ]
Anonymous Coward, 4 Mar 2013 @ 11:13pm

Re:
Im pretty sure you are being sarcastic, but just in case:

Remember kids when facts are not on your side calling people names makes you a winner.
[ link to this | view in thread ]
Anonymous Coward, 4 Mar 2013 @ 11:18pm

Re:
You forgot to write,

"Signed, out_of_the_blue/average_joe/bob/hurricane head/darryl"
[ link to this | view in thread ]
LDoBe (profile), 4 Mar 2013 @ 11:55pm

Re: Re: Re:
Or perhaps he thinks a bad copyright law is one that extends protection only another 20 years after it's original expiration (applied retroactively of course)

Or, he simply doesn't understand that if the SC bans resale of foreign manufactured goods, he won't be able to even sell a used BIC lighter, since it has the � symbol on it (applied to the specific shade of red the plastic is dyed or other such nonsense.)
[ link to this | view in thread ]
LDoBe (profile), 5 Mar 2013 @ 12:02am

Re: Re:
Well... The faucet example was manufactured in part in the Andromeda galaxy, which is 2.5 million light years away. Basically impossible to reach from either direction, unless some form of FTL travel is possible, or an alien civilization grew to maturity and sent a trading ship to us sometime earlier than 2.5 million years ago (from out POV at least. If they traveled fast enough, they would experience barely any time at all getting here.)
[ link to this | view in thread ]
LDoBe (profile), 5 Mar 2013 @ 12:05am

Re: Re: Be silly that reseller rights are more than the creators.
You just perfectly explained the broken window fallacy.

Just because the cost of one good is incurred on a population doesn't mean it's a net economic gain.
[ link to this | view in thread ]
Anonymous Coward, 5 Mar 2013 @ 12:09am

Re:
The Animal Farm America

FTFY
[ link to this | view in thread ]
Anonymous Coward, 5 Mar 2013 @ 12:15am

Re:
Nah, that would be The MAFIAA and its ilk, who are obsessed with preserving their profits at any cost (see also: HSBC.)
[ link to this | view in thread ]
LDoBe (profile), 5 Mar 2013 @ 12:21am

Re: Re: Be silly that reseller rights are more than the creators.
Fair use protects you, since your use is definitely parody. Also, I think you meant Starburst�, which is a "Juicy Contradiction."

But yes, everything OOtB says is horseshit, and we might as well ignore him/her/it(most likely). Although the things it says does, form time to time, spur intelligent people to say interesting things and make a cogent argument we can use with people IRL. I suppose OOtB might even be a valuable resource in order to keep us sharp on the day-to-day drill of refuting idiotic ramblings of syphilitic, unthinking minds that have bought into copyright maximalism as a "Good Thing" hook line and sinker.
[ link to this | view in thread ]
Shadow Dragon (profile), 5 Mar 2013 @ 1:09am

Re: Re: Re: Be silly that reseller rights are more than the creators.
I think maybe all those trolls are really helpful that they undermine the maximalist argument from within.
[ link to this | view in thread ]
Pete Austin, 5 Mar 2013 @ 1:59am

Re: Re: Be silly that reseller rights are more than the creators.
@MrWilson: Fixed it for you

"[It's a balance.] A creator's work is valuable because people want it. A reseller might purchase a book (or even a car) with the thought in mind that the price is more than they prefer to pay, but might be worth it if they can resell it later for a not-too-diminished value once they're done using it.

Restricting a purchaser's ability to resell diminishes the value of [each copy of] the work itself. Ironically of course, if you removed the right of first sale from products, the prices for [each copy of] those products would go up because the copyright holders would have even more of a monopoly on their products than they already do. [But some buyers could get their copy second hand, so the copyright holder would sell less new copies, which means it's not clear whether they would benefit overall.]"
[ link to this | view in thread ]
Pete Austin, 5 Mar 2013 @ 2:11am

Re: Re: Re: Be silly that reseller rights are more than the creators.
That made a lot less sense than I intended.

My point was that allowing purchasers to freely resell increases the value of each copy of a good, but reduces the need to buy new copies, so it's not clear whether copyright holders benefit.

Didn't spot that you switched between saying the right to resell makes items more valuable (in one paragraph) to saying that an increased monopoly increases the value (as measured by sale price, in the next).
[ link to this | view in thread ]
Jamie, 5 Mar 2013 @ 2:36am

Wrong
This is actually just wrong factually.

This isn't an attack on the First Sale Act, it's an attack on loop holes around international copyright.

While i think the publishers are wrong, this is the same as region 0-6 DVDs, you can't play a region 1 (America) DVD in Region 2(Europe) due to copyright and other rights. Which probably comes down to price eventually. We all know region 3-8 are dirt cheap, but we have to put up with buying our correct region DVD. Books do not have this protection
[ link to this | view in thread ]
Mike Masnick (profile), 5 Mar 2013 @ 2:46am

Re: Wrong
This is actually just wrong factually.

No, it's not.

This isn't an attack on the First Sale Act

There is no "First Sale Act" but it is absolutely an attack on the first sale doctrine.

it's an attack on loop holes around international copyright.

That is not true. There are no "loop holes" that you are talking about. What there is is greater access to a global market, leading to arbitrage.

While i think the publishers are wrong, this is the same as region 0-6 DVDs, you can't play a region 1 (America) DVD in Region 2(Europe) due to copyright and other rights. Which probably comes down to price eventually. We all know region 3-8 are dirt cheap, but we have to put up with buying our correct region DVD. Books do not have this protection

Um. You are correct that books do not have that protection. But that has nothing to do with copyright law.
[ link to this | view in thread ]
Anonymous Coward, 5 Mar 2013 @ 3:53am

Re: Wrong
We don't have to put it with it, because is nonsense.

You have a right to TRY, you don't get to force that and make it law, that is just wrong.
[ link to this | view in thread ]
Anonymous Coward, 5 Mar 2013 @ 3:55am

Re: 1908 was not the beginning
copyright IS separate. first sale is about that one exact item. (aka, you transfer all licenses with the item) Copyright is the right to make more of the item. So yeah, in this case, First Sale appears to apply.
[ link to this | view in thread ]
Anonymous Coward, 5 Mar 2013 @ 3:58am

Re: Wrong
actually, provided you import the DVDs, I can see no legal reason why you cannot watch them.
[ link to this | view in thread ]
Anonymous Coward, 5 Mar 2013 @ 4:42am

Re: Re: Be silly that reseller rights are more than the creators.
And if I no longer need my diminished value property that I am not allowed to sell, I may simply give it away.
What's that you say? ... I am no longer allowed to donate things to a charity?
[ link to this | view in thread ]
Niall (profile), 5 Mar 2013 @ 5:13am

Re: Wrong
There is no 'legal' protection to region coding on DVDs. If I want to have a Region 1 DVD player in Region 2 to play Region 1 DVDs, I can. It's just a ridiculous, anachronistic artificial scarcity to prop-up obsolete marketing windows.
[ link to this | view in thread ]
This comment has been flagged by the community. Click here to show it

Anonymous Coward, 5 Mar 2013 @ 5:30am

Wow, Chicken Mike. This one takes the FUD cake.
[ link to this | view in thread ]
Colin, 5 Mar 2013 @ 5:33am

Re:
Your arguments are very persuasive. I've never thought of it like that before.
[ link to this | view in thread ]
Anonymous Coward, 5 Mar 2013 @ 5:52am

If the decision goes against first sale, Americans will be able to own even less than medieval serfs. Further what happens to possessions when someone dies will the manufacturers insist on reclaiming them for destruction and make a charge for this 'service'.
[ link to this | view in thread ]
Anonymous Coward, 5 Mar 2013 @ 7:12am

Re: Re: Wrong
Need to import your DVD player too or unlock/purchase a region free one. But yeah I don't think there is any law that stops me from playing a different region dvds in a different region player in my region.
[ link to this | view in thread ]
ChrisB (profile), 5 Mar 2013 @ 7:24am

Re: Re: Re: Be silly that reseller rights are more than the creators.
Piracy is actually the broken window fallacy in reverse. While a broken window will enrich the glazier, it will reduce society's wealth. Inversely, a digital copy may hurt the producer of the media, but society will be improved.
[ link to this | view in thread ]
Jeff (profile), 5 Mar 2013 @ 7:26am

Re:
Because... money!
[ link to this | view in thread ]
Anonymous Coward, 5 Mar 2013 @ 7:58am

Re: Re:
Indeed, the legal system of the Animal Farm style Govt we are moving toward is the causing these problems.

The competition created by true Capitalism is being destroyed by Napoleon and his ilk - Bloomberg's "purchased" dictatorship is a perfect example.
[ link to this | view in thread ]
Anonymous Coward, 5 Mar 2013 @ 8:12am

Re: Wrong
"While i think the publishers are wrong, this is the same as region 0-6 DVDs, you can't play a region 1 (America) DVD in Region 2(Europe) due to copyright and other rights. Which probably comes down to price eventually. We all know region 3-8 are dirt cheap, but we have to put up with buying our correct region DVD. Books do not have this protection"

You're wrong on this. Your analogy breaks down quite quickly. What you are talking about is illegal importation (moving a DVD region to region). This case is about reselling something that is legitimately or legitimately brought into a region.
[ link to this | view in thread ]
Anonymous Coward, 5 Mar 2013 @ 8:20am

A seller/creator should lose all rights to an object when it's sold. They can create, modify, restrict it all they want (for all I care) to modify the value/use up to the point of sale. At that point they are basically establishing a value on the object/service and (should) be happy with whatever they get (or don't sell it). This is basic capitalism no?

I'm tired of manufacturers telling me how I have to use their stuff after I buy it. It's mine. I should have the right to do with it what I want (save copy and resell the copies). Why the heck do you care? I'm not hurting you, the thing you're selling, or decreasing the value.

Reselling stuff is so common the ramifications from this ruling could be so drastic it's stupid. Flipping houses (yea I know it's manufactured here), collecting items, concession sales, you name it. Resale is a common part of everyday life. Why should it be any different because it was manufactured overseas? Why should some foreigner restrict my basic rights? Why is this even an issue?
[ link to this | view in thread ]
Anonymous Coward, 5 Mar 2013 @ 8:26am

Newsflash for the content idustry, if I can't sell my Dvds,cds, books, videogames, and software, when I'm done with them, I won't buy them in the first place.
[ link to this | view in thread ]
Anonymous Coward, 5 Mar 2013 @ 8:27am

Re: Re:
Seriously Robert? The video suggests that you won't be able to sell your house because the plumbing is foreign made? You were probably one of the rubes out there saying that SOPA would have landed Justin Bieber in prison.
[ link to this | view in thread ]
Jesse (profile), 5 Mar 2013 @ 9:19am

Re: Re: Re:
The guy brought before the court was selling legally purchased books. I'm having a hard time understanding how that is reasonable and how that doesn't set a horrible precedent that couldn't affect selling all sorts of foreign made goods...
[ link to this | view in thread ]
btr1701 (profile), 5 Mar 2013 @ 9:40am

Re: Be silly that reseller rights are more than the creators.
> merely because some sleazy grifter sees
> opportunity to undercut prices in the US.

That's called competition and there's nothing sleazy or grifting about it. It's the way the free market is supposed to work, dumbass.
[ link to this | view in thread ]
btr1701 (profile), 5 Mar 2013 @ 9:46am

Re: Wrong
> We all know region 3-8 are dirt cheap, but
> we have to put up with buying our correct
> region DVD.

No, we don't. We can buy a DVD player that will play DVDs from any region. And such players are not illegal.

Circumventing some media company's marketing scheme is not a crime no matter how much they want to pretend that it is.
[ link to this | view in thread ]
Anonymous Coward, 5 Mar 2013 @ 9:47am

Re: Re: Wrong
DMCA
[ link to this | view in thread ]
btr1701 (profile), 5 Mar 2013 @ 9:47am

Re: Re: Wrong
> What you are talking about is illegal
> importation (moving a DVD region to region).

There's nothing illegal about bringing a DVD from another region into the U.S. (I can't comment on whether the reverse is true.)
[ link to this | view in thread ]
That One Guy (profile), 5 Mar 2013 @ 9:53am

Re: Re: Be silly that reseller rights are more than the creators.
Ah, but that was before the 'Felony interference with a business model' act was passed, which made competing with the already entrenched powers and businesses a criminal offense. /s
[ link to this | view in thread ]
Rich, 5 Mar 2013 @ 9:56am

Re: Wrong
The inability to play a DVD outside of your region has absolutely NOTHING to do with copyright.
[ link to this | view in thread ]
Rich, 5 Mar 2013 @ 9:59am

Re: Re: Re: Wrong
Wrong. The DMCA does NOT make it illegal to purchase or play DVDs outside of your region. I legally purchase non-USA DVDs off Amazon all the time.
[ link to this | view in thread ]
Rich, 5 Mar 2013 @ 10:03am

Re: Re: Re: Wrong
That's not quite true. Virtually ALL DVD drives allow you to set their region code up to five times. There is no reason you can't have a drive for each region (drives are quite cheap). It is not necessary to try and locate a region free player. (Note, though, I myself don't do this as I do have a region-unlocked player, but it wasn't necessary to import it.)
[ link to this | view in thread ]
RD, 5 Mar 2013 @ 10:16am

Re: Re: Wrong
"You're wrong on this. Your analogy breaks down quite quickly. What you are talking about is illegal importation (moving a DVD region to region). This case is about reselling something that is legitimately or legitimately brought into a region."

No, YOU are wrong, categorically. Region locks on DVD players and media

IS

NOT

A

LAW

at least not in the USA. Once again, for the cheap seats, it

IS

NOT

ILLEGAL

to have/buy/use/watch/obtain/get/import a DVD or player from another part of the world.

Region locks are a pure invention of Hollywood, and are NOT codified in any law here whatsoever.

Please stop spreading FUD and lies, and know what you are talking about before you open your yaphole.
[ link to this | view in thread ]
Rekrul, 5 Mar 2013 @ 10:49am

Is there any reason at all to believe that the Supreme Court won't bend over for the copyright industry and rule against Kirtsaeng?
[ link to this | view in thread ]
Milton Freewater, 5 Mar 2013 @ 10:58am

Re: Be silly that reseller rights are more than the creators.
"discuss what they'll do with someone else's 100 million dollar movie."

The fact that after all these years, you still won't admit that these discussions are about OUR property, not "someone else's," invalidates every post you make.

I was actually ready to agree with one of your points about this case until you reminded me who you are - someone whose only agenda is to trick us into believing copyright means a person can still own my property after he sells it to me.

You are why I "pirate."
[ link to this | view in thread ]
Milton Freewater, 5 Mar 2013 @ 11:02am

Re: Re: Re: Re: Be silly that reseller rights are more than the creators.
"they undermine the maximalist argument from within."

They make maximalists look like pathological liars ... but the PR campaigns already do that.

But worse, they make maximalists look like bullies and thugs who will say and do anything if they think it will get me to give them my computer and its contents. I don't actually think that's fair to the RIAA and MPAA. They are dazzled by that possibility but at the end of the day I think just want to keep the cash coming in.
[ link to this | view in thread ]
Anonymous Coward, 5 Mar 2013 @ 11:05am

Re: Re: Re: Re:
The books were sold abroad at a cheaper price in a foreign market reflecting its less developed economy. Kirtsaeng imported those books and undercut Wiley in the US market. This wasn't a guy who bought a novel at the Bangkok airport and sold it to a used book store. This is a guy who seeks a loophole in the law to create a business model for his personal enrichment.

If Wiley loses, rather than have to compete in the US against its own discounted foreign merchandise- they'll simply raise foreign prices to keep grifters like Kirtsaeng from undercutting the market, and the losers will be students in Third World countries. But as long as Kirtsaeng is allowed to profit, I guess that's all that matters here.
[ link to this | view in thread ]
Mike Masnick (profile), 5 Mar 2013 @ 11:05am

Re: Re: Re:
Seriously Robert? The video suggests that you won't be able to sell your house because the plumbing is foreign made?

I think the fact that Omega sued Costco claiming it couldn't resell their watches because Omega inscribed a tiny, almost impossible to notice "copyrighted" image on the underside of the watch suggests that the above scenario is not quite as far-fetched as you claim.

The ability to engrave something, claim copyright, and then stop the resale of physical goods is not FUD or some far-fetched idea. It's actually being done in practice.
[ link to this | view in thread ]
Milton Freewater, 5 Mar 2013 @ 11:07am

Re: Wrong
"we have to put up with buying our correct region DVD"

No, you don't.

I don't think price alone is worth giving up the convenience of buying within my region, but a lot of quality work is never released i our part of the country, and when I seek it out, I can buy it, no problem.

This case will not affect that.... but it will affect your right to buy or resell Region One DVDs that happen to be made in whole or in part outside the United States.
[ link to this | view in thread ]
TaCktiX, 5 Mar 2013 @ 11:25am

Re: Re: Re: Be silly that reseller rights are more than the creators.
Stop, don't give them any more ideas than they already have!
[ link to this | view in thread ]
Mike Masnick (profile), 5 Mar 2013 @ 11:41am

Re: Re: Re: Re: Re:
If Wiley loses, rather than have to compete in the US against its own discounted foreign merchandise- they'll simply raise foreign prices to keep grifters like Kirtsaeng from undercutting the market, and the losers will be students in Third World countries. But as long as Kirtsaeng is allowed to profit, I guess that's all that matters here.

I am curious what your economics background is?

Because your scenario is extremely unlikely. If that is actually what happens, the IMMEDIATE reaction would be for others to swoop in and target third world countries with cheaper, better offerings. Wiley jacking up prices would just cut themselves out of that market and open it up to smarter firms.

You act like there are no competitors in the market, which is a bizarre and simply incorrect assumption.
[ link to this | view in thread ]
Anonymous Coward, 5 Mar 2013 @ 11:46am

Re: Re: Re: Re:
I think the Kirtsaeng case is a very different set of facts. Are you seriously suggesting that Acme Pipe etches a small logo on PVC pipe, sells it in China and I buy it in the US, then they sue me under the Copyright Act to prevent me from selling in my house? Setting aside the absurdity of this actually happening. None of the people Kirtsaeng sold books to have been sued. Nor were any of the purchasers of Omega watches at Costco. How you can support the contention of the video that a homeowner would be unable to sell his house is staggering. All of the litigation has been between the rights holder and the importer. It's FUD, in the identical vein as "break the internet" and "putting Justin Bieber in prison" claims the FUDmeisters have spewed in the past. I'm a bit surprised to see you double down on such a shitty argument.
[ link to this | view in thread ]
Anonymous Coward, 5 Mar 2013 @ 12:00pm

Re: Re: Re: Re: Re: Re:
First of all, much would depend on the price differential. Second, the existence of "cheaper, better offerings" is pure speculation. If they exist, where are they now? If they're US-based, how do they not face the same challenge as Wiley. It appears that Wiley has a significant market for these types of texts in the US. Another publisher may not even have reimportation issues as they have no real market presence in the US. So they'd have to make all of their money on the slim Third World markets. If they have no current, acceptable substitute for the Wiley text- then production costs would likely be huge.
[ link to this | view in thread ]
Mike Masnick (profile), 5 Mar 2013 @ 1:01pm

Re: Re: Re: Re: Re:
I think the Kirtsaeng case is a very different set of facts. Are you seriously suggesting that Acme Pipe etches a small logo on PVC pipe, sells it in China and I buy it in the US, then they sue me under the Copyright Act to prevent me from selling in my house? Setting aside the absurdity of this actually happening. None of the people Kirtsaeng sold books to have been sued. Nor were any of the purchasers of Omega watches at Costco. How you can support the contention of the video that a homeowner would be unable to sell his house is staggering

It is an extreme scenario, but not one out of the realm of possibility -- which is the point. If the law were clear that it only applied to mass resellers, you might have a point, but that's not a distinction in the law.

And perhaps the reason no buyers of watches or books have been sued is because they didn't try to resell them...

But in this age when we see crazy copyright trolling like Prenda, do you REALLY think no one will try to make this argument in court one day soon?
[ link to this | view in thread ]
Mike Masnick (profile), 5 Mar 2013 @ 1:04pm

Re: Re: Re: Re: Re: Re: Re:
Second, the existence of "cheaper, better offerings" is pure speculation.

Speculation, sure, but not so crazy as you seem to be suggesting. I base this both on the history of price increases in one market due to things like trade barriers (an equivalent scenario in which all providers from another country may suddenly be forced to raise prices) as well as the rise of new internet-focused publishing houses that are attacking the text book market on the low end with VERY high quality products.

It appears that Wiley has a significant market for these types of texts in the US.

Mostly due to legacy issues, but that's another rant for another day.

So they'd have to make all of their money on the slim Third World markets. If they have no current, acceptable substitute for the Wiley text- then production costs would likely be huge.

Again, there's been an amazing growth in the world of cheap textbooks from a variety of upstarts. If you don't think they'd jump into developing nations as the big guys jack up their prices even higher, you're not paying attention. :)
[ link to this | view in thread ]
Anonymous Coward, 5 Mar 2013 @ 1:09pm

Re: Re: Re: Re: Re: Re:
What is odd is why the logo on the watch isn't a trademark issue. That seems like the appropriate solution.

But in this age when we see crazy copyright trolling like Prenda, do you REALLY think no one will try to make this argument in court one day soon?

Not unless they enjoy peals of derisive laughter.
[ link to this | view in thread ]
Mike Masnick (profile), 5 Mar 2013 @ 1:44pm

Re: Re: Re: Re: Re: Re: Re:
What is odd is why the logo on the watch isn't a trademark issue. That seems like the appropriate solution.

First sale applies to trademark too. I don't see how it's a trademark issue at all since it properly identifies that the watch is from Omega.

Not unless they enjoy peals of derisive laughter.

Has that really ever stopped anyone before?
[ link to this | view in thread ]
Anonymous Coward, 5 Mar 2013 @ 3:46pm

Re: Re: Re: Re:
I think the fact that Omega sued Costco claiming it couldn't resell their watches because Omega inscribed a tiny, almost impossible to notice "copyrighted" image on the underside of the watch suggests that the above scenario is not quite as far-fetched as you claim.

The ability to engrave something, claim copyright, and then stop the resale of physical goods is not FUD or some far-fetched idea. It's actually being done in practice.

And yet they lost on a copyright misuse defense.
[ link to this | view in thread ]
Anonymous Coward, 5 Mar 2013 @ 3:54pm

Re: Re: Re: Re: Re: Re:
It is an extreme scenario, but not one out of the realm of possibility -- which is the point. If the law were clear that it only applied to mass resellers, you might have a point, but that's not a distinction in the law.

So you're argument is that it's not FUD to worry about being able to resell your house because, even though no one's ever been sued for it before, there were a couple of copyright trolls who unsuccessfully tried something similar. Do you hear yourself?
[ link to this | view in thread ]
Anonymous Coward, 5 Mar 2013 @ 3:55pm

Re: Re: Re: Re: Re: Re: Re: Re:
You make good points. It'll be interesting to see how the court rules and what this does in the Ninth Circuit
[ link to this | view in thread ]
Anonymous Coward, 5 Mar 2013 @ 4:01pm

Re: Re: Re: Re: Re: Re: Re:
My point is that while there may be a cause of action against the actual re-importer, It's hard to envision the Court extending that liability further down the food chain. For example, the innocent purchaser of counterfeit Nikes has no liability. He didn't know of their origins. However, the counterfeiter/importer/seller has a big issue.
[ link to this | view in thread ]
Anonymous Coward, 5 Mar 2013 @ 4:15pm

Re: Re: Re: Re: Re: Re: Re: Re:
Again, there's been an amazing growth in the world of cheap textbooks from a variety of upstarts. If you don't think they'd jump into developing nations as the big guys jack up their prices even higher, you're not paying attention. :)

I don't know. US textbooks are pretty much the international gold standard. I have a hard time believing that a company operating in a Third World economy could:

a) develop a competitive alternate text
b) make any inroads into the N. American market where the big money is
c) profit on the relatively few, low dollar sales in such market

Remember, they'd not only have to develop a world-class text, profit from a low-margin, low density market- but also have to be prepared to fend off an aggressive reentry by Wiley and companies like it.

It would certainly cure the grey market issue as it's very unlikely that such a book would ever be used as a text in the US.
[ link to this | view in thread ]
Anonymous Coward, 5 Mar 2013 @ 4:20pm

Re: Re: Re: Re: Re: Re: Re: Re:
This isn't an area where I have great depth. How is the first sale doctrine apply in the plumbing case. It is purchased abroad and imported by Joe's Plumbing Supply. Joe sells it to Home Depot or me directly. I install it in my bathroom and later sell the house to you. It seems we're well beyond the first sale. Am I missing something?
[ link to this | view in thread ]
Anonymous Coward, 5 Mar 2013 @ 5:13pm

Re: Re: Re: Re: Re: Re: Re: Re:
My question arose from this passage on first sale on Wikipedia:

With reference to trade in tangible merchandise, such as the retailing of goods bearing a trademark, the first sale doctrine serves to immunize a reseller from infringement liability. Such protection to the reseller extends to the point where said goods have not been altered so as to be materially different from those originating from the trademark owner.
[ link to this | view in thread ]
Anonymous Coward, 5 Mar 2013 @ 11:06pm

Re: Re: Re: Re: Re:
This is a guy who seeks a loophole in the law to create a business model for his personal enrichment.

Why is it when a corporation uses a loophole in the law to create a business model for "personal enrichment", it's called "a successful, money-making business", but when an unincorporated individual does the same thing, it's a no-good, terrible, bad thing? And also evil, evil, evil?

But really, how much of a loophole is it that he purchased some books at the price they were being offered for sale, and then he sold the books elsewhere for a price that that market could bear? What he did seems very straightforward to me: you're supposed to buy low and sell high.

I have to take issue with your very odd use of the word "grifter"? Are you aware that a grifter is "a person who swindles you by means of deception or fraud" -- who did he swindle? He didn't stiff the company he purchased the books from, he paid the price they asked. What deception did he commit when they took his money? What swindle occurred when he offered the books to potential buyers and quoted a price, and they either paid it or said, "no thank you."
[ link to this | view in thread ]
Mike Masnick (profile), 6 Mar 2013 @ 1:38am

Re: Re: Re: Re: Re: Re: Re: Re: Re:
This isn't an area where I have great depth. How is the first sale doctrine apply in the plumbing case. It is purchased abroad and imported by Joe's Plumbing Supply. Joe sells it to Home Depot or me directly. I install it in my bathroom and later sell the house to you. It seems we're well beyond the first sale. Am I missing something?

"First sale" doctrine doesn't apply to just literally "the first sale." It just means that you can resell what you've bought without having to get approval.

Not sure your familiarity with the law, but it's basically a form of "exhaustion."

But the issue with trademark is that you can, for the most part, legitimately resell something with someone's trademark on it, so long as it's not done in a way to confuse people about the origins or to harm the brand (loosely speaking).

So, really not an issue in the Omega case.
[ link to this | view in thread ]
Mike Masnick (profile), 6 Mar 2013 @ 1:43am

Re: Re: Re: Re: Re: Re: Re: Re: Re:
I don't know. US textbooks are pretty much the international gold standard. I have a hard time believing that a company operating in a Third World economy could

I didn't say the company would be operating in a third world country. I'm saying these upstarts would happily supply to third world countries.

a) develop a competitive alternate text

Already done in many cases.

b) make any inroads into the N. American market where the big money is

Again, there are a number of companies who have jumped into the space recently, and seem to be doing pretty well. Flat world knowledge may be the most well known but there are a bunch of others.

c) profit on the relatively few, low dollar sales in such market

Welcome to the business model of disruption. Charge a hell of a lot less, make it up in volume and on ancillary products and services. Stock photos used to cost $1,000. Now they're $2. Market disrupted. It happens all the time.

Remember, they'd not only have to develop a world-class text, profit from a low-margin, low density market- but also have to be prepared to fend off an aggressive reentry by Wiley and companies like it.

Again, this is *ALREADY HAPPENING*. Now all that would be happening is that Wiley would effectively be ceding the 3rd World market to them by jacking up their prices.

If Wiley were to then "reenter the market" they'd have to do so at that low price again, thereby disproving your original premise that Wiley will jack up the price.

It would certainly cure the grey market issue as it's very unlikely that such a book would ever be used as a text in the US.

Would suggest you look up what's been happening in the education space lately. It's being reinvented from the ground up with a number of new providers offering free or cheap online courses, along with free or cheap texts. And most of that is happening in the US.
[ link to this | view in thread ]
The Real Michael, 6 Mar 2013 @ 5:40am

1) If the first-sale doctrine is rescinded on foreign-made goods, this would give companies a major incentive to outsource practically all domestic manufacturing. In effect, the Supreme Court would destroy our economy.

2) Every business reliant upon selling used products would have to police every item for foreign-made goods, then give a cut of the profit to each individual distributor.

3) Corporate entities would become middle-men on all private transactions via non-expirable, corporate-imposed taxation.

4) Selling products would have to be 'authorized'; this paves the ground for the auditing of all personal effects. IOW, government intrusion into your personal affairs.

I could go on but why bother? It's too depressing.
[ link to this | view in thread ]
Anonymous Coward, 6 Mar 2013 @ 6:08am

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:
So the essence of the Omega case is the misapplication of copyright to a simple trademark, right? Are trademarks automatically subject to copyright? Or does one have to apply? It seems like the reasonable fix is to draw a bright line. Thanks for the info.
[ link to this | view in thread ]
Karl (profile), 6 Mar 2013 @ 11:14am

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:
I didn't say the company would be operating in a third world country. I'm saying these upstarts would happily supply to third world countries.

You know, you don't even have to go this far to show that the A.C. is wrong. Producers can't increase prices arbitrarily, even in a perfectly monopolistic market.

Wiley (and other publishers) don't lower their prices is foreign markets out of the goodness of their hearts. Those prices are already at the maximum that they can set to maximize their marginal revenue. If those prices were higher, fewer people would buy them, and the loss in marginal revenue from sales would be greater than the gain made from the higher price.

If they increased the price of books in third-world countries to something even approaching the prices in the U.S., Wiley would price themselves out of the market entirely, even without any competition whatsoever.

So, they have two choices. They can either leave the third-world market entirely, or they can lower the price of books in the U.S. Since lower U.S. prices would still result in marginal revenue - even if not optimal for a monopolist - they stand to make much more money overall from that second option.

And that's not even considering competition. Not just from "upstarts," but from well-established first-world publishers. If Wiley chose to leave the market, or price themselves out of it, other publishers would do the math, take that second option, and make a killing. They'd outsell Wiley in the foreign market by default; and, due to their lower prices, they'd crush Wiley in the U.S. market as well.
[ link to this | view in thread ]
janey, 6 Mar 2013 @ 1:00pm

well then..
Yet these same folks are trying to put up more and more hoops for legal gun owners in the United States?

Sorry, can't have your cake and eat it too. You can sell your widget, but you have to have a background check first to make sure you aren't a pirate.

Doesn't sound so fun, does it?

yeah. didn't think so.
[ link to this | view in thread ]