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. icon
    James Burkhardt (profile), 29 Oct 2012 @ 10:25am

    Re: Re: It's the content, not the physical media, Mike.

    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.

    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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