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, 29 Oct 2012 @ 2:26pm

    Re: Re:

    Your quaint economic theories aside, you ignore the practical implications. If I sell 10,000 medical textbooks in the US for $200 each and 500 in third world markets for $50 each I am not going to allow a profiteer like Kirsaeng to undercut me in my primary market and erode my sales. My response will be to raise my third world price to a level where it is no longer attractive for people like Kirsaeng to use my own product to undercut me. The net effect is that the third world price will go up and likely negatively affect medical education in those markets. If that is ok with you, I think you should look at it again. We are not talking about someone who buys a novel at the airport in Bangkok and then sells it on EBay when he gets home. We're talking about a guy who sold over a million dollars in a commercial enterprise.

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