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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."
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
"In a 4-4 decision, the U.S. 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."
How are those last two sentences related to the rest of the summary?
And you can't pass it on without my permission!
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
It seems like the dominant trend in U.S. legislation is that if favors rich corporiations and individuals, at the cost of what seem like basic freedoms of common citizens.
Does anyone know, historically, whether all countries have this trend? And if so, historically, what things (if any) have lead to the reversa of these trends? I.e., does it require a reboot (i.e., full-blown revoluion), or is even that never enough?
only applies to goods made in the US.
So nothing then? Why pick a Swiss watch? Why not go with something like a Nike football. Good ole' American Nike making American football, right? Wrong. I bet all the clothes on me right now came from Vietnam or Cambodia or Thailand or some other Asian fabric powerhouse. Donating them to a Goodwill store to be resold would be ... illegal?
Furthermore the article notes CostCo but what about Wal-Mart and Target. They resell these same articles of clothing as a middleman. Do they have some special contract protecting them from the largest copyright lawsuit to ever hit the retail industry?
This is so bizarre and just another indication of how copyright is seriously broken. If I understand the article, it's just because there's an Omega emblem on the watch? So since CostCo now owns that watch, they can chip the logo off and sell it for whatever price they want? This makes about as much logical sense as smearing my face with my own feces before a job interview.
Is there any lawyer out there with some background in this that might tell me what implications this holds for something like clothing being sold at Wal-Mart on the cheap? Or does it need to have an MSRP on it? How does this apply to software developed here but pressed overseas? So many questions I could dream up to ask about this new court decision.
My work here is dung.
Nothing illustrates the collective ridiculousness of the current Supreme Court than this decision.
So now, foreign companies have vastly greater control of their products in your home than American companies do.
That is not exactly a decision that is in the best interest of the American people.
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.
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".
Until people wake up and realize that they do not owe copyright owners anything, nothing will change. I had a conversation a few weeks ago with a person who used to work for the recording industry, and when I suggested that there might not be any ethical problem with downloading unauthorized copies of music and movies, he became so emotional that the conversation ended with him demanding that I never speak to him again. When the people "on the other side" of the issue are fighting like it is a matter of life and death, what hope do the rest of us have when most people just do not see copyright as being a particularly big deal?
Palm trees and 8
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.
There they have a different system where creators have more control of their works.
But wait, it gets better! This decision is based on a copyright claim over the tiny fucking logo on the back of the watch! Ridiculous barely begins to describe it.
The only thing necessary for the triumph of evil is that good men do nothing.
For a while, yes. But Kagan is only 50 years old. From a political standpoint, they may lose some cases that they didn't have to in the next few years, but they've gained somebody who will be in their court (heh heh) for decades.
Not making a value judgment on that; it's just political hardball same on both sides. I wish it were different. I would also like a pony.
Why? Partly because she was the Solicitor General:
SHAPIRO: How common is it for a new justice to have to recuse from the number of cases that Kagan is recusing herself from?
TOTENBERG: Well, it's not common because, at least more recently, we haven't had top Justice Department officials migrating to the court. But it's happened many times in our history. Justice Thurgood Marshall, who was solicitor general, for example, recused himself from about half the cases the court heard in his first year. But that high number was largely because he remained SG until he was confirmed.
And Kagan didn't do that. She stopped being SG right after her nomination. So, this high number of recusals, I think, is front loaded. She'll probably be recused from about a third of the docket this year, and then next year her recusals will plummet to zero or something close to that.
One interesting thing, Ari, is that there are a number of cases that she's reused herself from that she really had nothing to do with. And these are cases that generally involve commercial disputes. And the Justice Department filed a notice that it was taking no position, and these are just routine evaluations. They're done by lower-level lawyers but she signed the filing, so she's taking herself out of those cases.
SHAPIRO: And when she's recused and there are eight justices on the Supreme Court, what happens then?
TOTENBERG: Well, the case goes forward, as usual. And if there's a four-to-four tie, the lower court opinion is automatically affirmed without the Supreme Court issued any opinion, then presumably the issue can come up in another case, later, where Kagan can participate.
What one fool can do, another can. (Ancient Simian Proverb)
yes, because CostCo will just eat the copyright infringement penalties and defy court orders so they can keep reselling those watchhes.
Nobody is going to take you through the courts for selling your grandfather's Rolex. But if you form a watch company and get a sweet deal on 5000 Rolexes through some intermediary company in Asia, and they offer you another 5000 when you've sold the first lot, then you might get a court summons. These are the people the orginal manufacturers are upset about. They want their expensive looking shops in the premier end of the mall selling their products at a high mark up, and they get upset when a bulk distributor like Costco manages a deal and undercuts the places on Fifth Avenue.
It's the Fifth Avenue shops that will be the ones who've got this one into the courts; they know people will stop shopping there if Costco do a better deal and they are terrified the online traders like Amazon will jump on board next.
>>>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
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."
"You're right, poor choice of words. It's about good made outside the US, not bought outside the US. Thanks for clarifying..."
Wrong. It's not about goods made outside the US, but about goods imported illegally into the US. Read the 9th Circuit's decision if you don't yet understand the distinction.
"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?
but what about the store / supplies that first payed for it?
PJ O'Rourke wrote a great book on politics and economics called Eat The Rich. In his book, he examines a number of different political systems and concludes that so long as there is rule of law and private property rights, almost any political system can function. This is true of capitalism, socialism, communism, and even fascism. Take away either of those two components -- rule of law or private property rights -- and you've got trouble.
This story is just another example of our disappearing private property rights. The basic test of ownership is disposal. If you have the right to dispose of an item in some way, through sale, donation, alteration, or destruction (safely, of course), then you own it. If you are prohibited from doing any of these things, then it is not really yours.
Proverbs 21:19
I refuse to believe corporations are people until Texas executes one. -- desert rain on http://www.dailykos.com/user/
To the law, there's no difference between selling one watch on Craig's list or selling thousands at Costco. The only difference is how likely you are to get caught.
Support Right To Repair Legislation.
Effectively supporting collusion and price fixing so that people can sell their products at an inflated rate in the US and other Western countries while selling them for what they really cost elsewhere.
Brilliant!! Let the gouging begin!
Lost at C:>. Found at C.
The problem is, this whole "gray" market thing.
If you purchase the goods legally in the country you bought them in, there's no gray. If you take property you own and move it from one country to another, there's no gray. If you sell property you own, there's no gray either.
So, how is legally buying a product in one place, and selling it in another "gray" -- because copyright law says so? So we can guarantee corporate profits? If it costs 20 bucks in Vietnam, why is it worth 2000 bucks in New York?? Does selling this to Americans increase its value?
This sliding scale for the cost of goods is to all of our detriment -- you're not paying what the product is worth, you're paying what the market can artificially jack up the price to be, and have the courts to enforce that consumers get screwed.
Lost at C:>. Found at C.
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."
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."
Dude, that ain't polygamy... that's cannibalism.
(Actually it's usually more like organ theft, since so many "body" parts wind up getting discarded in the process.)
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
Free Trade is not for everyone!
Insanity: voting in the same two parties over and over again and expecting different results