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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
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?
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.
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)
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.
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.
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?
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
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."
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