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First-Sale Doctrine Lost Overseas
Max Hyre writes "In a 4-4 decision, the US Supreme court let
stand the Ninth Circuit's decision that
the First-Sale Doctrine (which says once you buy something, the maker
gets no say in what you do with it) only applies to goods
made in the US. That Omega watch you bought in Switzerland last
year? It's yours now—forever. You can't sell
it without Omega's permission."
The headline is overstating things a lot. The First-Sale Doctrine isn't lost overseas. Since this is a 4-4 tie decision by the Supreme Court, only the lower court decision is upheld. There is no precedential force behind the decision at all. Thus, the only thing that can be said about this is that Costco loses this particular instance, but the right of First-Sale overseas remains in effect since this decision isn't useful for any subsequent precedent.
http://www.slate.com/id/2109077/ --- A good analysis of what happens when a tied decision occurs.
My postings are informational and does not constitute legal advice. Act on it at your risk.
If this is the worst one you've ever heard of, then you're not very familiar with the history of the court. Look up a few of their previous failures, like Wickard v. Filburn, Kelo v. New Haven, and Gonzales v. Raich.
-jcr
The only title of honor that a tyrant can grant is "Enemy of the State."
The summary is written is misleading. The distinction made by the Ninth Circuit depends both on where an item was made as well as where it was sold. If you legally purchase a foreign made product in the US (ie from an authorized reseller like Walmart), then the right of first sale still applies. However, you can't buy foreign products in a foreign country and then resell them in the US without permission.
I still think it's a bad decision but the summary makes it out to be even worse.
Only those goods that were not only made but also purchased in a foreign country, and which were purchased subject to an agreement which, if the purchase was made in the US, would be unenforceable because the violate the doctrine of first sale.
Essentially, this means certain commercial aspects of US copyright law don't apply to sales of goods where the copyright isn't a US copyright and the sale agreement isn't executed within the jurisdiction of the U.S.
This probably doesn't affect any foreign-made products in most peoples homes; the issue really mostly affects goods bought abroad for resale.
The prohibition is on distribution of copies or derivative works. Not resale of the original.
Specifically due to the 'first sale' doctrine - the copyright holder controls distribution only through the first transaction, not through subsequent transactions. Since this ruling says that 'first sale' does not apply to goods procured outside the US, it means that the copyright holder does retain distribution control of the original copyrighted work.
It's an absolutely unforgivably terrible ruling, but that's what it says.
I can top it. In Santa Clara County v. Southern Pacific Railroad, 118 U.S. 394 (1886), the SCOTUS decided that corporations were people and thus entitled to 14th amendment protection.
I write sci-fi for metalheads
Costco ALWAYS clearly labeled grey market products. They back them with their 100% satisfaction guarantee. I bought a Denon Receiver from them and they were very clear that they were not an authorized retailer and that Denon would not service the product or warranty. I was a fully informed consumer when I purchased it.
It doesn't matter if he grew twice the amount he could use in a year. The federal government simply does not have jurisdiction inside the state on matters that the US constitution doesn't grant it.
FDR probably said it best when he said
He said this in a speech about the Volstead Act which was printed in its entirety on March 3, 1930 by the New York Times. Of course this was two years before he became president and set the stage as well as the motion in works for the expansion of the interstate commerce clause in the US constitution.
You see, no one has to justify anything to something that never should have been allowed to happen. If the guy was participating in interstate commerce, then the feds get jurisdiction. He did not sell in interstate commerce so it was solely a state matter. If the state enacted the same laws and brought the same prosecution about, it never would have reached the supreme court unless something in the state constitution bared that type of law, seeing how US constitution specifically gives the states this jurisdiction within the state.
17 U.S.C. 602(a):
"Importation into the United States, without the authority of the owner of copyright under this title, of copies ... of a work that have been acquired outside the United States is an infringement of the exclusive right to distribute copies ... under section 106, actionable under section 501."
It sucks, but it's the law.
"In prison you just have to shut your eyes and take it. Here you have to shut your eyes and give it."
The Bill of Rights to the constitution grants no rights. Its evident if you read it. The first amendment reads:
"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances."
It doesn't say it grants any rights or freedoms. It recognizes the freedom and rights of the people that already existed. Indeed to be even more clear the 9th amendment reads
"The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."
Where do these other rights come from if you think they come from the constitution? Clearly the founders of our country realized that the rights of men were not granted by governments, but came from some other higher power; they said so in the Declaration of Independence. Your views on rights being granted at whim by the government lead to a statist tyranny. Dread Scott was wrong on law and on the merits.
The contracts between "Manufacturer and Retailer" and "Retailer and Customer" are wholly separate, and Manufacturer cannot impose subsequent conditions on the contract between "Retailer and Customer". (In other words, Apple can't demand their retailers sell at a specified price).
No longer true, as of 2007,
http://en.wikipedia.org/wiki/Leegin_Creative_Leather_Products,_Inc._v._PSKS,_Inc.
Retailer is free to source products from anywhere in the world (the "grey market"), they're not obliged to buy from local distributors
No longer true, as of 1998,
http://en.wikipedia.org/wiki/Quality_King_v._L'anza
The irony there is that they had actually decided no such thing, but a clerk was allowed to decide whether to add a note to the opinion that they hadn't decided it because the justices all believed that it was so. If he hadn't added that note, the decision would never have mentioned it, and it would have been left to later cases to decide it.
In reality, since it's not part of the decision, courts should actually now be deciding it all over again, but the Supreme Court, being answerable to nobody and at liberty to interpret the words in the Constitution as it pleases, seems to like it the way it is. At least, the 5 of them anointed by Republican Presidents do.
Oh, jeez, and I wanted to moderate this story.
Well, not anymore I won't.
Here is a huge correction to your statement:
The Supreme Court has NEVER said that corporations were people!
It has never happened.
The sentence in question was added YEARS after the decision on that case was made, it was added by a clerk who did that on purpose in order to change the law all by himself.
http://www.youtube.com/watch?v=wHmGEkzhhfQ - skip to minute 5 in the video and listen for a couple of minutes.
You can't handle the truth.
I don't think so; IIRC, it's not overturned but doesn't form binding precedent on the other circuits either. I think we'll see this one back in the Supreme Court at some point relatively soon.
Omega sold that watch to a distributor.
The distributor sold it to Costco.
Somewhere along the line it was imported to the US. According to this ruling, any of the purchases/sales along the way from the OEM to your wrist can be forbidden if Omega says so.
Good judgement comes from experience, and experience comes from bad judgement.
- W. Wriston, former Citibank CEO