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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."
It will provide a huge boost to US manufacturing jobs!
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.
That would certainly deter me from buying products that were manufactured or contained parts that were manufactured abroad.
But it would incentivize companies to build stuff abroad. Once they've imported it they can voluntarily give purchasers control over it anyway if that helps build sales, but it's something they can turn on and off to their own benefit. If they build in the US then they don't have the option. So why build in the US?
That would certainly deter me from buying products that were manufactured or contained parts that were manufactured abroad.
Name one such product.
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.
I am Slashdot. Are you Slashdot as well?
The case is regarding items manufacturered in foreign countries and intended for sale in those countries. NOT items manufactured in foreign countries intended for sale in the United States. At issue is having someone buy things cheaper overseas and resell them cheaper here in the US than the manufacturers intended US price.
That's still horrible - but not nearly as bad as the article summary would have you believe.
The guy who's being brought to trial seems to have imported enough textbooks to earn $1.2 million. That means this isn't really a case about reselling your car, but about whether private citizens can buy a bunch of stuff abroad and re-sell it here for profit because it's cheaper abroad.
You can track the legislation here:
So having read the article, it doesn't say the same thing as the summary. To be fair, I haven't read any of the court paperwork, so the publisher could indeed be claiming that you cannot sell something with foreign parts.
This case, however, stems from a student buying textbooks at lower cost overseas and then selling them in the US on eBay.
I'm not saying it's good, right or proper that the publisher wishes to restrict these sales. I simply want to highlight that it's a very different proposition saying you cannot resell in the US a complete product purchased in a developing market where the manufacturer sells at a lower cost as opposed to being unable to sell anything that contains a foreign part.
I believe the situation the publisher supports is already the case in Europe, where Levi Strauss won a battle against supermarkets who were importing grey market denims and selling them at a lower cost than licensed distributors could buy the jeans in the UK.
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
What matters is where the authorized "first sale" occurred, not where it was manufactured.
So if a book publisher has books printed outside the US, then imports them and sells them retail for the first time in the US, you can freely resell it because the first sale occurred within the US.
What is being disputed in this court case is whether you can resell a copyrighted item in the US if the first sale occurred outside the US.
---------
There is inferior bacteria on the interior of your posterior.
So the the best example of something wholly made 'made in America' is a weapon.
Well done.
"Oops, I always forget the purpose of competition is to divide people into winners and losers." - Hobbes
But since we already have right of first sale, the presumption has always been that it is our property, and that we are free to sell it.
This would literally change it so that everything is essentially licensed, and you don't own it.
And, I'm sorry, but given what people pay for their cars, the idea that we would need permission to sell it (or almost anything else) is kind of scary.
This kind of thing is truly getting ridiculous, and IP law will have fully jumped the shark.
Lost at C:>. Found at C.
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.
Even worse, many items are made from petroleum. Just think of plastics and everything made from plastic or incorporating bits of plastic (I see some vinyl in that there car, sonny, and the tires are made of rubber). Now some of the petroleum used in making those plastics and related synthetics might have come from wells in the USA, but some might not and it tends to get blended during or after refining. The provenance of such intermediate materials is not tracked.
So we have another question: how much transformation of a foreign-sourced raw material or intermediate material derived therefrom would be needed to escape the consequences of this putative ruling? Would shaping foreign wood into furniture be sufficient? What about polymerizing a foreign-sourced material (making an intermediate of plastic or ceramic or rubber)? Even supposing a strict boundary could be defined for the amount of processing or transformation required, it would just lead to the creation and feeding of loophole-finding (or making) industries.
Those who can make you believe absurdities can make you commit atrocities. - Voltaire
Some student from Thailand imported the EEE books from Thailand, sold them on E-Bay and made 1.2 million dollars. He is claiming immunity under First Sale doctrine. The EEE contract with the Asian publishers prohibit them from selling it to the lucrative western markets. But once the book has been bought in those markets, can they be imported and sold in USA? The appellate court ruled it can't be brought in sold.
I am not a lawyer, but I expect the Supreme Court to rule more narrowly. "When a copyright/intellectual property right originating from USA, is licensed to foreigners under some restrictive license, the foreigners can not use first sale doctrine and third parties/subsidiaries to circumvent the license restrictions". That is the kind of ruling I expect. That is, not all foreign made objects would be exempted from first sale doctrine. Those items made abroad under restrictive licenses from ip-holders in USA alone would be exempted. But I am not sure they will rule this way. I am an engineer most comfortable calculating intersections between triangles and tetrahedrons. I find them very easy compared to US laws.
One interesting tit bit was that, when I came to USA as a student with F-1 Visa, I was scared by the EEE books I was bringing in. I used some 75% of my baggage allowance with books. I knew how serious copyright law was in USA. I knew my books are cheaper in India. I was worried the immigration officer would reject my visa and send me back! Seriously. I was worried about everything from the turmeric powder in my hand baggage to the loose staple on the sealed I-20 form issued by the university attached to my passport! Once inside the USA, I was just relieved. I never even thought for a moment to buy millions dollars worth of EEE books and selling them cheap in the USA. 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. If the courts do not rule narrowly and uphold first sale doctrine for these EEE books, the publishers will simply stop licensing EEE books under cheap terms. Millions of Asian students will be affected.
sed -e 's/Chuck Norris/Rajnikant/g' joke > fact
Justice Thomas has stated he does not feel that he is listening when he is thinking about what to say, so he does not ask questions. It is flame bait to claim that he is sleeping. The interesting thing is that some of the pro corporate stuff comes out the liberal side of the court. For instance Keho, this was where the supreme court decided that the government could seize property via eminate domain and give it to a corporation. The logic was that the government would receive more tax revenue from the new use. The conservative side produced citizen united which basically lets corporation give unlimited money to political speech.
It would also mean that most garage sales would have to get raided in case there was a stereo or DVD player on sale and many donations to organizations such as Good Will or Salvation Army would not be allowed. Hurray! We can still put that stuff in the landfill though. I remember that appellate court ruling when it was mentioned here or on Arstechnica. At the time I wondered just how they could come to such a ludicrous decision.
It's Kelo, not Keho, but otherwise a spot-on comment. I would like to think that this would be an obvious, slam-dunk decsion, but after Kelo and Reich, I don't know that there are such things any more. Which, by the way, just points out the infinite danger of the "living Constitution" philosophy: it inevitably leads to the rule of man (that is, arbitrary and capricious rule, rather than the rule of law, which is predictable and not tied to personalities), by the mechanism of making the law meaningless without constant, case-by-case interpretation.
-- Two men say they're Jesus. One of them must be wrong. - Dire Straits
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.....)
This comment represents a really deep misunderstanding of the question before the court, which seems to be reflected by most of the comments on this thread, unfortunately. Sorry to pick on you, but you're early in the list.
The misunderstanding is that this law specifically applies to products imported without the permission of the manufacturer. And it only applies to copyright, because copyright is where the doctrine of first sale applies. It doesn't, for instance, apply to patents, nor even to trademarks. The case turns specifically on the question of whether the doctrine of first sale applies to a product purchased in a foreign country, imported into the U.S. without the permission of the copyright holder, and then sold here in the U.S.
So unfortunately this will not serve to boost American manufacturers, unless they can propagandize people into believing something that isn't true. But it will serve to further restrict grey markets, allowing copyright holders to continue charging different prices to rich Americans than they do to rich Europeans.
ONLY corporations have PROPERTY RIGHT.
Signed, United States, Inc.
"Flyin' in just a sweet place,
Never been known to fail..."
Hunting weapons are still weapons... Every time you kill a deer with a bow you are using is as a weapon. The fact that bows are almost never used against people doesn't change the meaning of weapon.
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.
This would be the kind of court decision that would have Congress write an amendment codifying right of first sale, and having the House get somewhere around 418* "Yea" votes, followed by about 95* in the Senate. Obama would sign it, and roughy 50 states would ratify it.
Not only would it be the fasted amendment ever ratified, but it would be a clear message that the Supreme Court can go to hell if they're going to fuck around with the way commerce has worked in this country since before it was a country.
* there's always a few cranks that vote against the obvious flow, just to get their name in the press with a few quotes. They just want to grandstand, and nobody pays attention to them anyway.
Slashdot still doesnâ(TM)t support Unicode after it was added to the HTML standard in 1997.
The linked Marketwatch article is complete BS. Clearly the author had no idea what they were talking about, and just took one sentence and expanded it into massive hyperbole. Here are some choice examples from the article:
Put simply, though Apple Inc. AAPL -0.15% has the copyright on the iPhone
I don't think so. They have patents, not copyrights.
It could be your personal electronic devices or the family jewels that have been passed down from your great-grandparents who immigrated from Spain.
No, those things also cannot be copyrighted.
It could also become a weighty issue for auto trade-ins and resales, considering about 40% of most U.S.-made cars carry technology and parts that were made overseas.
Also nothing to do with copyright.
He himself once bought an antique desk from a Supreme Court justice.
Yet another example.
It sounds like the author just made stuff up as they went along. Here are some better articles:
SCOTUS! eBay! Cert and Other Sundries
Summary of Kirtsaeng v. John Wiley & Sons, Inc. at the Supreme Court's own blog
Justice Thomas has stated he does not feel that he is listening when he is thinking about what to say, so he does not ask questions. It is flame bait to claim that he is sleeping
Really? One of the finest legal minds in the country can't think on his feet? When I listen I come up with questions automatically. The very act of processing the information coming in produces questions. I'd go as far as to say that if you don't have questions after a talk, whether it's an argument, a speech, or a lecture, you weren't really listening.
Give me Classic Slashdot or give me death!
It's not complicated at all. Copyright law is incompatible with property rights. Pick which one you want.
Give me Classic Slashdot or give me death!
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.
By putting it into landfill you are still transferring ownership.
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
Except that Kelo was completely constitutional. It says right in the constitution that the government can seize property as long as they properly compensate the previous owner.
I actually saw this happen in a nearby city. There was an area predominantly populated by fixed income, older people who owned their own homes mortgage free. The city decided that they wanted to build a commercial area there. Cities hate residents, because residents cost them money, while commerce pays them money, so it is easy to understand why they would want to move commercial in. They ended up making lowball offers on hundreds of houses. Some people took them, some didn't. The city would also let you move your house, but they would only approve the moving permit from the city's chosen contractor, which was expensive. The longer people stayed, the lower the offers got, until finally some people had their house condemned out from under them for refusing to sell. Those who did move had to go from having no mortgage to having a mortgage on a more expensive house because most of these houses were in the $50k range and houses nearby that were available cost more like $75k, and they were only compensated about $35k for their houses. The city determined that was fair market rate because they were just going to tear the house down anyway, and nobody else would offer anywhere near $35k for a house that was going to be torn down.
If you are not allowed to question your government then the government has answered your question.
Man, I want to live in your United States, and not the real one that we have. Here's what would really happen in Congress if the USSC came down on the side of corporations in this decision: Nothing