The judge actually got this one right. "Decades of settled practice" by industry isn't a binding legal determinant. The plaintext of the law supports Flo & Eddie's position. Also, there's a difference between "express carveouts" to copyright law and "exceptions" thereto, the latter category being broader. The only express carveout to the California law is for cover songs (not broadcasting), but SiriusXM still got to litigate a bunch of affirmative defenses *for* their broadcasting (including fair use), so First Amendment concerns were definitely factored in. They just happened to lose on it, because there's nothing transformative about broadcasting songs for pure commercial gain. I agree that the law is silly, and there should just be a federal broadcasting right for all recordings instead of this stupid segmentation before and after 2/15/72, but that's something for the legislature to fix, not the judiciary.
The ruling is less odd if you understand the principle of Congress "occupying the field" with the Copyright Act. Nothing in the Act precludes equitable doctrines like secondary liability, but the rolling three-year statute of limitations definitely precludes something like laches. The majority gets it right - laches is a gap-filler. The courts only used it on copyright claims when copyright didn't have a federal statute of limitations (they were borrowing from state statutes). Once Congress laid down the three-year window, laches outlived its usefulness.
They're going much further than saying it's not an absolute bar - they're basically saying it will almost never apply (damages are always kosher within the three year SOL, and equitable relief only gets tossed in extraordinary circumstances).
Of course, the Conan Doyle Estate is not done fighting. Not only has its lawyer said that the Estate is "exploring an appeal," but also hinted at using trademark law to stop other attempts at using the characters. Stay tuned on that front...
But the call wasn't inquiring into abuse - it was asking if the transaction was personal or business. It would be no less specious to call a customer who just pulled cash from an ATM asking details on where he's planning to spend it.
I feel like we need a two-tiered system within the DMCA to handle situations like this one: a notice-and-takedown system for third parties who use a service anonymously (your garden variety lay-streamer), and a notice-and-notice system for third parties who preemptively provide a service with information sufficient to identify them in case of alleged infringement (like, say, an authorized event broadcaster). Couple that with harsh penalties for any unsuccessful infringement claims and you have a system that allows rights-holders to combat whack-a-mole infringement (since the infringing user will not likely challenge the claim), but also allows anyone responsibly utilizing copyrighted content to maintain that use with safety valves on both sides [the ability to identify them if the use isn't proper and a severe disincentive for rights-holders to pursue anything but the most blatant infringement]. I'm sure it's not perfect, but it seems like it could be a lot better than what we have now.
I'm actually very much struggling to keep up with Techdirt during my prep, haha. I almost never go into the threads anymore... but I wanted to make an exception for this post. :) Thanks kindly! Just gotta treat it like a horrible, horrible full-time job for the next four weeks... oh, how I wish there was *any* intellectual property tested. Other than boring tort claims (trade secrets violations, etc.) that is.
Oh no, U.S. copyright *protection* still applies for goods brought in from other countries; we have treaties to that effect with most every nation [mostly through Berne and TRIPS]. Just not the specific first sale exception, which the courts have interpreted as only attaching if the goods originate under U.S. law.
If I weren't in the middle of preparing for the bar exam, I'd be reading Kirtsaeng right now so I could see why the hell the Second Circuit came to that conclusion. Can't wait to go back to reading about law I actually care about...
I actually haven't read the full Kirtsaeng ruling, so thanks for pointing that out. IIRC, that case still revolved around Omega-like facts, correct? The guy bought foreign textbooks and resold them to U.S. customers? If so, the goods didn't make the "round-trip" described in Omega [lawful importation by the manufacturer], so the Second Circuit shouldn't have needed to address the defendant's argument as anything more than dicta. But you're right, once it gets to the Supreme Court, all bets are off.
It could theoretically block it, or it least dangle liability over it. Things become very messy when you start having many links in the chain of title and awareness of the good's origins become shrouded in mystery to subsequent buyers, though. Right now, the chief area of enforcement in this field is when manufacturers create versions of their product for multiple regions at varying price points they believe are appropriate for those regions; they want to prevent resellers from snatching up copies in low-priced regions to flip in high-priced regions. Enforcement seems unlikely against people selling individual copies of works that aren't subject to that particularized business plan, but just having the uncertainty there is chilling enough. This is definitely an area of copyright law that needs to be vigilantly supervised to curtail abuse, and I'm not sure courts are cognizant of just how much collateral damage they might do in propping up these business models.
If everyone in the official chain of distribution were located outside the U.S., this would work. But that would mean the copyright holders would have to accept not having a robust domestic market for their goods in return for stripping away first sale rights, since the only way to purchase their goods would be by either direct import or from an unlawful domestic importer/reseller. I can't imagine that making much market sense for most companies. Ultimately, I believe they're less interested in the casual buyer's ability to resell what they bought than they are with competing against their own products as sold by commercial-scale resellers who are plucking up versions of the product meant for low-income regions to flip in high-income nations.
As soon as the manufacturer authorizes someone in the chain of distribution to bring the products into the U.S., the right of exhaustion (first sale) is triggered. That's what the Omega case spelled out. Unless the manufacturer plans to never offer their product in the U.S. and just assume everyone who wants it will import it from abroad, they'll have to accept some first sale attachment at some point.
I mentioned this in an earlier thread on the subject, but I actually think this is an interesting place where the Techdirt positions are in conflict. When the SSRC report in Piracy in Emerging Economies came out, it was championed as vindicating business model solutions to infringement rather than legal solutions. Specifically, it demonstrated that media was simply priced far too high in emerging economies, leading directly to piracy, and the solution was to make media more affordable. But if media was universally priced at levels acceptable to the most impoverished nations, its manufacturers would likely never recoup the costs of development. So the solution was to segment the markets, and price each regional offering according to what its population could afford. But if anyone can just pluck up the copies available in the cheapest market and resell them in the most expensive market, that business model is destroyed, and we've taken away one of the main methods for copyright holders to actually provide affordable options to developing nations.
No and no. In both case, you're purchased a foreign product, not manufactured under U.S. copyright and not made subject to U.S. copyright by the manufacturer itself (or someone authorized on their behalf) lawfully importing it. The only way the Chinese-made goods would be subject to first sale here in the U.S. is if the manufacturer authorized them to be brought into the U.S. for sale. I think there are some exceptions in the law for small quantities of goods purchased for personal use, but not for commercial operations (like someone independently setting up shop to buy foreign-made goods specifically to resell them to U.S. buyers).
Keep in mind that the product doesn't just need to be manufactured outside the U.S., but purchased outside the U.S. as well. If someone manufactures copyrighted media in China, but then imports it to the U.S. to sell domestically, they have consented for U.S. copyright law to govern the sale and first sale rights will attach. The only way manufacturers will be able to strip away first sale rights domestically is if they never sell their products domestically. This is less about destroying first sale rights generally and more about preserving segmented markets (where they don't want cheaper versions of their products produced specifically for third-world consumption to compete with the higher-priced versions in first-world markets, where they know the population can afford the mark-up). Not saying it can't be perniciously used, but it's not quite as dire as I think some people are interpreting.
Problem: What, exactly, is Funnyjunk "fighting off" with The Oatmeal? He specifically said he had no interest in going to court, and he's not the kind of entrenched player with lobbying clout to put ICE on the job. All he did was slam their business model using colorful language. He never accused them of a crime; at best, he accused them of acquiescence to their users' activities and dragging their feet on addressing the rampant infringement on the site. There's absolutely nothing wrong with pointing that out, even if it's not illegal.
There's a Grand Canyon's worth of difference at being "very sensitive" about accusations (from a layman who had no interest in suing, mind you -- not the government or anyone in a position to "seize" their domain) and threatening suit to stifle someone's freedom of speech. So, no. Funnyjunk ain't in the right here, and your last statement is absolutely horrifying from a personal liberty and freedom of speech standpoint. I suggest you rethink your position very carefully.