Slashdot Mirror
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."
That is the most absurd and arbitrary distinction I've ever heard. A law of convenience if I ever heard of one. One step closer to stripping our rights in the name of international legal harmony.
Creationist Textbook Stickers Declared Unconstitutional by CowboyNeal
that they based it on copyright law: an Omega logo on the watch.
I thought it would be something like a signed contract, or buying from a foreign wholesaler, then importing to the US.
But the copyright on the logo?
I'm not a lawyer, but I play one on the Internet. Blog
Like speeding, just because a law exists doesn't mean I will obey it. If I want to convert my Watch to cash, I will find a way to do it.
"I disapprove of what you say, but I will defend to the death your right to say it." - historian Evelyn Beatrice Hall
The problem with allowing third-party imports to be sold is that consumers will buy the items, expecting the manufacturer to support them (providing warranty service at a minimum). If the product in question is not sold directly domestically, then the manufacturer may not be prepared for the support. Further, the product may have been sold in a country where the cost and level of support is different.
The solution is to require that any imports not authorized by the manufacturer must be clearly advertised as not supported by the manufacturer, with all service provided by the importer.
"prevent U.S. retailers from selling goods they obtained overseas."
There is a difference between "produced overseas" and "obtained overseas".
So let me get this straight:
I'm a free citizen who merely wants to convert one type of property (watch) to another type of property (paper dollars), per my natural, inalienable rights as a Freeman. Your response is to compare me to a guy who is equivalent to Benedict Arnold (sharing secrets with a foreigner)??? I'd say your analogy is "fail"
"I disapprove of what you say, but I will defend to the death your right to say it." - historian Evelyn Beatrice Hall
Under other provisions of copyright law, importing a copy of a protected work amounts to an infringement of the copyright if the copy was made abroad and brought back into the U.S. without permission.
Emphasis mine. What is "permission?"
So what I'm asking is whether or not Wal-Mart signs agreements with Vietnamese companies that say they can bring them into the United States and did CostCo, like, drop the ball on that one? Did they smuggle them in their coat over to the US? I assume they passed customs from both countries, what level is this illegal on?
How on Earth would this deal go down any differently for Timex watches made in China sold in CostCo? Are you telling me that CostCo was making money by purchasing Omega watches at MSRP in Switzerland and then reselling them below MSRP in the United States? I'm not an economist but something sounds really strange in that case. This is what the SCOTUS Blog said:
The case involved a company, Omega S.A., that makes watches in Switzerland and sells them around the world through authorized distributors and retailers. Costco, a membership warehouse club that sells brand-name merchandise to members at prices lower than its competitors, had bought Omega's Seamaster watch abroad and re-sold it in the U.S. Costco's price was $1,299, about a third less than Omega's suggested retail price of $1,999.
Does anyone else think this sounds like Omega struck a deal selling thousands of watches to CostCo only to find out that when people saw them for $1300 they perceived a devaluation of the one they bought at the mall for two large? I mean, it sounds like Omega is trying to force CostCo to maintain a minimum profit margin. That's not capitalism. It's becoming more and more clear that copyright and capitalism are mutually exclusive concepts. And I'm guessing that this is some bizarre abuse of copyright that any foreign manufacturer could hold over the largest retailer/reseller's head. Evidently it happens on a smaller basis with Omega.
My work here is dung.
"I don't get paid for work I did two decades ago. Why should you?"
"Um... uh... well..."
"That's what I thought. There is no justifiable reason to extend copyright beyond about 10 years. There is no reason why you should get an annual payment for the rest of your life for work you did when you were age 20 or 30. *I* don't get that privilege of lifelong income. I work. I get paid. I might get a bonus at the end-of-the-year or decade for work well done, and that's the end of it. The same should be true for you."
"I disapprove of what you say, but I will defend to the death your right to say it." - historian Evelyn Beatrice Hall
Slashdot is over-sensationalizing a bit, or a lot.
This does not appear to have any impact on individual rights. You buy something in the US, is yours, you do as you please, including resell it. This covers a different situation where a company goes and buys foreign products in a foreign market, perhaps even with an agreement explicit or implicit as to what they can do with them, but then brings them over to the US for sale. That is what is at issue here. Costco said "We can do that if we want," the 9th Circuit said "No you can't," and the SC is split. That's rather different than an individual doing anything. If an individual bought one of those watches from a US store, they could then do as they liked.
So this isn't an issue for rights for you as an individual, don't worry. It is an issue for differential pricing. A company might wish to sell a product for different prices in different markets. Say a product costs $5 to make and get to a country for sale, $5 total cost, everything after that is profit. In the US, they discover they can sell it for $25, because the product is unique and people have money. In India they can't get that, people have less money, they have to sell it for $7 which they still make a little on, but not as much. These are all wholesale prices.
Well what someone like Costco might want to do is go and buy the product in India and import it. There is an arbitrage opportunity. Let's say it costs Costco $10 to buy retail, and $5/item to get them and ship them over. That still puts there per item cost at $15, well below the $25 they'd have to pay normally. That of course lets them undercut competitors.
That is what is trying to be stopped here. The companies don't want them to do that, they want to be able to have different pricing in different markets. Costco fought back arguing first sale, that after they sold it they can't tell Costco what to do.
I'm not saying the courts have made the right decision, but as the parent notes, this is not an issue for your and my individual rights. We go to a store (or online) in the US and buy something, first sale applies same as ever this has nothing to do with it.
>>>the point is the same
No not the same. The difference is I did not sign a contract and pledge a promise to not convert the Omega watch to cash. No company nor government has any right to stop me from doing so. IN Contrast, the soldier DID sign a contract to keep quiet about classified documents, and he broke that sacred pledge. Hence breach-of-contract. Hence prosecutable.
So you see? The analogy between me and the soldier does not fit. I'm a freeman and have certain inalienable rights, including the right to convert one property (watch) to another property (dollars), and the Union government has zero authority to take-away that right. See Amendments 9 and 10.
"I disapprove of what you say, but I will defend to the death your right to say it." - historian Evelyn Beatrice Hall
You can resell that watch as a private citizen
That's not how I read it. The bit you highlighted is editorial commentary; it does have serious implications for US retailers, but that doesn't mean they are the only people it has implications for. If 'first sale' doesn't apply, then the copyright holder retains control over all subsequent distribution of their copyrighted work, public or private.
since it was a tie vote, it could come up again.
Which is, at least, a small mercy. The fact it was a tie is absolutely unbelievable, though - even with my healthily embittered view of the world I didn't expect the protectionism to reach these depths, especially when it actively harms others with very deep pockets.
Yep, pretty much. We've moved from a manufacturing and research economy to a purely intellectual property economy. All our wealth is going to be tied up in imaginary pieces of paper that say that people have to pay us for using computer software, or by building windshield wipers a particular way, making pharmaceuticals with a particular active ingredient, or for listening to music or watching movies (ooh, a toll on "culture"). We even get money if they record and distribute content themselves using patented h.264 video codecs. So all we need to do is just sit back and collect the money, backed by the threat of economic or conventional warfare if they don't pay up. Maybe once in a while we need to renew or trivially update our patents or copyrights to keep anyone from innovating around them, thus maintaining the status quo.
Not much different from the way things were in the colonial era, where we sent a lot of profits back to the empire, and you needed official licenses from the king to operate trade routes or the navy would sink you. Heck, they even still unabashedly call some of these payments "royalties" today. Fortunately, we know how this turned out, so we can probably count on history repeating itself eventually.
While the 9th Circuit's ruling is unfortunate, it's not quite as bad as not being allowed to resell any items manufactured overseas. Whereas the 9th Circuit's decision applies to goods obtained overseas, goods legally imported into the United States would still be protected by the first-sale doctrine.
The decision still sucks, though. Not only do I think it's a perversion of copyright law to add a copyrighted logo to a watch in order to prevent importation that would otherwise be perfectly legitimate, but I also think it's a perversion of justice for copyright law to bar unauthorized importation of nonpiratical copies the way it currently does.
"In prison you just have to shut your eyes and take it. Here you have to shut your eyes and give it."
Why are only corporations allowed to take advantage of the 'global economy' (outsourcing), but customers should be prevented from purchasing goods where they are cheapest?
Really? What about house builders, infrastructure?
Should the people who built a highway get money from every user for the rest of their lives?
Should the painter who did the exterior of my house get a say on allowing me to repaint it in a different color?
Think how inconvenient it would be for companies if they prices their goods differently in different countries and then someone circumvents that by moving the goods from a cheap market back into an expensive one.
I should give a fuck why?
If you actually believe in free markets, strong property rights, and capitalism you should wholly support such reimportation. Hell, even if you don't, you should support it, unless you're some sort of fascist oligarchist.
If I had the power to destroy one fiendishly wrong-headed notion before I die, the following would be on the short list:
The justices did what they were supposed to do: Enforce the law as written.
Sigh. Have you seen the inscriptions over the Court? ""Equal Justice Under Law" coming, "Justice, the Guardian of Liberty" going. Maybe you've seen the statue of the blind-folded chick? Wanna take a guess what her name is?
The ultimate job of the Court is not just "to follow the rules." A third-grade hall monitor would be sufficient for that. The ultimate job of the Court is to find what is Just. It is the job of a god in the hands of flawed, fallible men. This is the reason why we are supposed to find our nine finest legal minds, our nine wisest elders.
In our finest legal traditions, we have found that the beginning of Justice, the bare minimum, is to keep the Strong from preying on the Weak, and that is why Dred Scott is such a famously reprehensible decision. We don't condemn the Sharia judges for stoning women to death because they're misapplying the rules. We condemn them for the evil they do by refusing to look beyond the rulebook. The Dred Scott Court cannot excuse themselves by crying "We were just following the rules" any more than other famously evil men can.
When we put guns in the hands of 18-year-old kids and tell them to go and kill in our name, we give them a warning. If the rules conflict with your conscience, if you do something you know is wrong by following the rules, you will one day be held accountable, and crying "I was just doing what the rules said I should," will not save you.
The job of the Court is to find Justice as best Humanity can in the year 2010. It is their black-letter job to stand in the gap and say "This rule, written by the Strong to steal from the Weak, is wrong and we will not abide it."
The Court is supposed to be the Conscience of our Nation, not nine bureaucrats bludgeoning people with the results of lobbies and politics.
The job of the Dred Scott Court was to keep men free. to be the "Guardians of Liberty" as inscribed, not to safeguard the pocketbooks of their kidnappers and rapists. The Dred Scott judges were not "Bad men, but good judges." They were evil men and bad judges as well.
He put his boots up on the table and made a face. "The sig," he smirked. "You can waste your life in search of the sig."