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.

Filed Under: copyright, first sale, kirtsaeng, ownership, property rights, supreme court

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  1. identicon
    Anonymous Coward, 30 Oct 2012 @ 12:45am

    Re: Re: Citizens don't violate treaties

    I think you ask an interesting question about what law applies in this case, but my response would be to ask how the U.S. court system can be tasked with adjudicating based upon anything but U.S. law?

    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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