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 @ 1:17pm

    Re:

    Imported, not reimported, in all likelyhood. Aside from that, the linked Ars Technica article above clearly shows that the entirety of the UK is included in those 'Third World' Countries (I check UK textbook listings myself).

    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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