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Supreme Court To Decide Whether Or Not You Own What You Own
Jafafa Hots writes "The Supreme Court is set to decide, in the case of Kirtsaeng v. John Wiley & Sons, whether or not First Sale Doctrine applies to products made with parts sourced from outside the United States. If the Supreme Court upholds an appellate ruling, it would mean that the IP holders of anything you own that has been made in China, Japan or Europe, for example, would have to give you permission to sell it. Your old used CDs, cell phone, books, or that Ford truck with foreign parts? It may not be yours to sell unless you get explicit permission and presumably pay royalties. 'It would be absurd to say anything manufactured abroad can't be bought or sold here,' said Marvin Ammori, a First Amendment lawyer and Schwartz Fellow at the New American Foundation who specializes in technology issues."
That would certainly deter me from buying products that were manufactured or contained parts that were manufactured abroad. People would be determined to buy domestic products (assuming they even exist these days). That said, it was clear that I could sell my car without permission when I bought it - changing the terms after the sale seems very wrong. If they implement this rule, they should specify that it applies to sales after a point in time in the future.
Almost any electronic device and all autos made after the 50s or 60s that has an imported part of some sort. Do we take it to the next level with minerals and metals imported too? I think this has about as much chance of standing as a two legged stool.
When something is sold, it is no longer the sellers, it's the buyers.
This rediculous IP notion has gotten out of hand.
Actually no, it will be the opposite.
It sounds like they are gouging the hell out of their US customers if this guy can buy the same book abroad, pay international shipping on it, probably import duties etc. and still make $1.2 million dollars. Instead we have another case where a "rights holder" is trying to assert insane terms on the rest of country to preserve their business model. Let us hope that the Supreme Court hears this on one of its "non-crazy" days.
It's not just a problem with electronics. I might have Chinese light fixtures, or Mexican light switches, plumbing etc. in my home. Will I have to get permission from 50 different companies before I can sell it?
Sorry, but gray text on gray background is making my eyes bleed.
I predict an obvious but subtle castigation of lower courts for it getting there at all.
But when did we lose common sense? Can't a corporation think it's way out of a wet paper sack?
Clearly the solution for them would be to raise prices abroad.
This parallels drug importing I suppose as well. Same solution imho.
Oh wait...nobody abroad would pay that much for a book? Then maybe you're gouging the US market and as a judge I'd say you've made your profit here via gouging and abroad by what you were willing to sell for under no choice but your own and what the market will bear.
Tough Shiite.
So if upheld then Apple (or indeed any American corporation that utilizes offshore manufacture of products of their own design) could forbid resale of their products so that you could only ever buy new from them.
Seems like a win for them.
The Fuji vs. Jazz Camera, Lexmark vs. Arizona Cartridge Remanufacturers, and other cases have been rare examples of unanimous rulings by the Supreme Court vs. similar appellate court rulings on patent extension. I work in the re-manufacturing industry and am not too worried about the USA courts (though the Terminator-like persistence of foreign companies bringing the case that resale = patent or trademark infringement is frightening, and the Mickey Mouse rulings on Trademark are depressing). What's more troubling is the direction ownership law goes when the USA Supreme Court and European Courts no longer oversee 80% of all product sales. Chinese consumers purchase more computer products than the USA today, and if they take a Japanese turn in their court rulings, these corporations may become godlike, and the USA may be tempted to try to give our own companies (like Apple) similar power. See links to the cases above at http://retroworks.blogspot.com/2012/03/usas-finest-supreme-court-ruling-for.html
Gently reply
Before yesterday I would have nominated "PETA Condemns Pokemon For Promoting Animal Abuse" as the batshit crazy story of the year. Now I think it has competition.
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It will, unless very cautiously written, soon enough be supplying precedent for shutdowns on individual ebayers and whatnot.
Also, isn't 'illegal importing' more usually what we call "Arbitrage" or "Trade", unless the goods imported are themselves illegal or relevant laws concerning customs duties and declarations were not adhered to?
Do any of these products contain plastic, fibers, pigments, metal, rubber or electronic components? if so more likely than not they contain parts not made in the US.
From The Deathly Hallows by JKRowling:
"You don't understand, Harry, nobody could understand unless they have lived with the goblins. To a goblin, the rightful and true master of any object is its maker, not the purchaser. All goblin-made objects are, in goblin eyes, rightfully theirs."
"But if it was bought — "
" — then they would consider it rented by one who had paid the money. They have, however, great difficulty with the idea of goblin-made objects passing from wizard to wizard. [snip] I believe he thinks, as do the fiercest of his kind, that it ought to have been returned to the goblins once the original purchaser died. They consider our habit of keeping goblin-made objects, passing them from wizard to wizard without further payment, little more than theft."
sed -e 's/Chuck Norris/Rajnikant/g' joke > fact
the books are legal.
it's reselling them that you need permission for, hence the stupidity of this case.
I repeat, the books weren't unauthorized pirate copies...
world was created 5 seconds before this post as it is.
which is equally silly. essentially I shouldn't be able to take my jeans to a flea market because I bought them during a trip to USA? (levi's can be had ~33% of the price there vs. here locally, not kidding).
legally the case is is sadly about who has the right for resale. global markets and all, consumers should benefit from it. if we can find a cheaper way to ship the products into our hands in whatever country we are in, then we should be allowed to do so.
world was created 5 seconds before this post as it is.
The 99% will not care, because they'll be too busy saying "well it doesn't hurt me directly, and therefore I don't care"
Actually, since it kills every thrift store, second-hand shop, pawn shop, etc. I'm pretty sure "the 99%" are going to notice the problem pretty damn quick.
The lower court directly addressed that question and said that authorized importation of a work manufactured abroad would not be sufficient for the first sale statute to apply. Perhaps they went further than they needed to to decide the case that was before them, but the case is not really being misrepresented.
While the Ninth Circuit in Omega held that 109(a) also applies to foreign-produced copies of works sold in the United States with the permission of the copyright holder, that holding relied on Ninth Circuit precedents not adopted by other courts of appeals. Accordingly, while perhaps a close call, we think that, in light of its necessary interplay with 602(a)(1), 109(a) is best interpreted as applying only to copies manufactured domestically.
-- This and all my posts are in the public domain. I am a lawyer. I am not your lawyer, and this is not legal advice.
... you honestly think corporations would limit themselves to that interpretation?
Oh goody! No more first sale doctrine! No more used games/CDs/cars/android-phones-tablets and on and on and on. You want a new one? Fine. Just don't think you can get away with selling your old one. Garage sales are the new black market.
I think NO OBJECT should be exempt from the first-sale doctrine. It's an object. A thing. The patents associated with the things were exhausted with the first sale. Nothing else was manufactured. I think they're out of their minds. But there would be enough big-money interest in the US wanting to see this happen so they can justify similar protection in the US to "fight back" in the most patriotic way imaginable.
The things I own, I don't own... I hoped I would die before that happened.
They can sell at different prices and deal with importation or they can somehow add some value to the more expensive sales. Maybe delivering them for free and on time, or adding in some service.
What they should not be able to do is demand that my tax dollars make them wealthy.
They have no right to make a profit, only a right to try to.
In a world where patent trolling is rampant... you'll see it happen, and unfortunately, if the ruling is upheld, you'll very likely if not definitely see the following:
- Pawn shops out of business
- 'legit' used car market evaporates or used car prices skyrocket to nearly the price of new (with all of the extra money going to the IP trolls)
- Trade stores (Gamestop, Trade It, etc) out of business
- Thousands upon thousands of jobs lost
- Billions of dollars in revenues (both tax and trade) disappear
- If they make it retroactive, lawsuits and repossession of property en masse
- If the law is applied evenly, the real estate market gets even more thoroughly screwed up than it already is (you sure that lumber and drywall is US produced? what about the wiring? light switches? ceiling fans? refrigerator? glass? vinyl/aluminum siding sheets? PVC pipe? faucets? the list goes on.....)
ONLY corporations have PROPERTY RIGHT.
Signed, United States, Inc.
"Flyin' in just a sweet place,
Never been known to fail..."
Sure, at first, some people may notice that there used to be thrift stores. For a while. Some old geezers will say "I remember back in my day when you could just buy things, and then sell them--for cash!--and it was nobody's business but yours". But eventually, it will just be normal. Thrift stores will just be added to the list of businesses that aren't allowed to exist, and so they don't exist. And since they don't exist, nobody will care about getting the law overturned, because they will perceive no demand.
After all, who can say how many stores are currently NOT in existence due to over-regulation? Can you even begin to say what businesses are ALREADY not in existence, due to laws? How many picobreweries, tobacconists, brothels, non-health-department-licensed restaurants, non-licensed physicians and dentists? How many cheap delivery services are NOT in existence due to the Post Office monopoly on first class mail? How many people WOULD be growing MJ in their backyard if it was legal? Exactly how many cab drivers WOULD there be in Dallas if they weren't effectively regulated out of existence so as not to compete with light rail projects?
It's easy to say "this law is harmful because if we pass it, a valuable sector of the economy will disappear and thousands of jobs will be lost". It's harder to convince people to see the jobs and the economic sectors that aren't even there, that were never started, or that used to be there.
Out of sight, out of mind. People don't miss what they don't have, and once the regulated sectors of the economy dry up, people don't even see the regulations as unreasonable anymore. If all the thrift stores disappear, it will just be another of a thousand cuts to our economy, and then people will sit back decades later and wonder why the economy sucks and blame the other party for it.
I'm davidwr but I don't want to undo my moderation of the parent post. It was "-1 - troll" when I saw it, +1 insightful'd it, and by that time it was "2 - funny."
If the Supremes rule broadly that the First Sale doctrine doesn't apply to items which contain foreign parts, you'll see a disruption in the marketplace, but it won't be pretty.
SOME customers, notably some business customers who depend on the ability to re-sell, some governments looking for any excuse to "buy American," and a small percentage of individuals will insist on buying American when possible. SOME retailers will specialize in selling only products that their customers are "free to resell" but it won't become widespread, general practice.
Here's why:
Most large companies that control "IP" - studios, large software houses, etc., will make sure that their mainline products qualify as "made in part overseas." Yes, they may sell a "made in the USA" or "free to resell" version that has minor differences and huge up-front increased price so they can qualify to sell to governments and companies that insist on the "right to resell" but their retail products will prohibit reselling. Because they are willing to turn down business from SOME customers to protect their future sales from the resale market, they will essentially "force" most of America to either concede to the reality that they can't re-sell their CDs, or simply do without.
My hope is that the Court will do the opposite and make it clear that people have the right to re-sell what they've already paid for.
What's your reasoning?
If this horrendous piece of judicial fascism becomes law against all that is holy and in the Constitution, then I would see it as a major boon to U.S. manufacturers.
ANd if this passes, I will try my darndest to get my state (Texas) to re-establish its republic and get the fuck out of this forced-by-gunpoint union. And then I'm going to join the new Texas Armed Forces to defend the republic from both Mexico and the U.S. ;-/
Slashdot Valentines Beta Massacre: iT WORKED! The boycotts killed Beta!!
Same damn thing as in the books. You only rent something, never "own" it. Kelo vs New Haven showed who owns your home. The county or city, not you. You only get to buy and sell the leases fairly freely, but you don't own your house. That's why you have to get permission from the actual owner to alter it. In most places in the U.S., you can't even replace your kitchen faucet without permission from the real owner. Nearly everyone in an urban area walking out of a Home Depot is, or soon will be, in violation of local laws and often don't even realize it.
Peace is easy to achieve, just surrender. Liberty is much harder get/keep.
Except that any sane company is going to go out of their way to manufacture as much as possible outside the U.S. so that they get to decide whether or not you can sell it. If I'm an electronics company, and I can build the phones I'm going to sell in America, in either America or China, and you need the manufacturer's permission to sell something not bult in America, why would I build in the U.S.? If I build in China, I can force my customers to buy new phones because they aren't allowed to buy used ones.
There have been hundreds of thousands of students from Asia who knew the price differentials. None of us thought of exploiting it by arbitrage, because we knew it was "wrong". This creep from Thailand did just that.
Actually, engaging in this sort of arbitrage is virtually an American tradition. The only reason there's a lawsuit here is because there's intellectual property involved. If someone discovered that they could purchase Widget X in Country B at a lower price than in Country A, then bought a lot of Widget X and imported to Country A to resell at a higher price, we'd typically call them smart or at least entrepreneurial. Not to mention that consumers in Country A benefit from lower prices.
But since this involves copyright, normal logic goes out the window, and we're told that a book, lawfully purchased in Thailand, cannot be lawfully sold by its purchaser in the United States... because OMG WE NEED DIFFERENTIAL PRICING. You know what? Not my problem. Don't use copyright law to outlaw arbitrage. You want to make your differential pricing more effective? You could translate it into the local language, that'd be a huge barrier to reimportation and reselling.
BTW, this is the exact issue brought up in the Omega v. Costco case - except there it was even more ridiculous, since the copyright was on a design that happened to be stamped on the watch. Currently Costco is apparently winning the issue, since they're arguing that Omega is engaging in copyright misuse in order to control distribution of a normally uncopyrighted object (a watch).
"Anyone who [rips a CD] is probably engaging in copyright infringement." - David O. Carson
From TFA:
I see. So when jobs get shipped overseas because labor is cheaper, and companies can make a higher profit, I'm told I have to accept lower wages and compete in a global marketplace. When a consumer notices that prices are cheaper abroad and buys books there to increase his profit here, the courts change one of the fundamental concepts of Capitalism (that you can resell what you purchase) to stop him.
Can there be any doubt we live in a Corporatocracy? Can I get a fucking witness?
"What the American public doesn't know is what makes them the American public." -Ray Zalinsky (Tommy Boy)
If, for example, a car has zero resale value by law, it will immediately be worth a lot less to a buyer than a similar all American made car.
The Supremes would have to have several extra holes in their heads to even think about making such a ruling. They would destroy many billions of dollars in value with a single bang of the gavel. They would have a dreadful time sorting out the issue of anything bought prior to the ruling where the decision was in part or in full based on resale, particularly if the explicit purpose was resale.
They would also wipe out major auction sites, any second hand store, all used car lots, and many retail operations. Destroying the entire underpinning of ownership in law is not appropriate for even the Supreme Court.