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Supreme Court Upholds First Sale Doctrine
langelgjm writes "In a closely-watched case, the U.S. Supreme Court today vindicated the first-sale doctrine, declaring that it "applies to copies of a copyrighted work lawfully made abroad." The case involved a Thai graduate student in the U.S. who sold cheap foreign versions of textbooks on eBay without the publisher's permission. The 6-3 decision has important implications for goods sold online and in discount stores. Justice Stephen Breyer said in his opinion (PDF) that the publisher lost any ability to control what happens to its books after their first sale abroad."
will not stop the publishers from making DMCA requests / filling strikes that can cost you $35 a pop.
Like, seriously? The supreme court saw reason and is judged in favor of the consumer?! Will wonders ever cease!
No better time to start making money.
I think I speak for every politician and lobbyist when I ask "Who the hell are these nine impostors, and what have they done with the real Supreme Court justices?"
Quoting the judge: 'the publisher lost any ability to control what happens to its books after their first sale abroad'
I'd like to see this concept applied to anything that is purchased outright. If the publisher lost the ability to control what happens to the book then shouldn't Microsoft lose the ability to control what happens to an XBox after first sale? Modifying the hardware of something that you own should NOT be against the law.
Do what thou wilt shall be the whole of the Law - Aleister Crowley
I wouldn't be surprised to see a bigger push towards e-books. That is a way around the "problem" for the publishers.
GENERATION 27: The first time you see this, copy it into your sig on any forum and add 1 to the generation.
Now lots of online businesses peddling second hand goods will spring up in no time.
What about pdf books and eBooks? Can they be traded online or offered free by the legitimate purchaser?
If you keep throwing chairs, one day you'll break windows....
you can already resell your Oxycontin scripts on the street. i know of people who may or may not make $1000 a month doing so.
but copyright is the least of your problems
Seriously? Reselling a physical product you bought legally needed the highest court in the land to adjudicate?
I'm not surprised to see Justices "Whatever helps big corporations the most is best for the country" Kennedy, and "Whatever the republican party says today is the founder's original intent" Scalia writing a dissent, though. I don't know what could have made Ginsberg side with them though.
This may be one of the most important decisions this court has gotten right in years. This was absolutely huge because of the implications of what would have happened if it had gone the other way. This is critical in terms of the idea of actually owning what you buy, without this manufactures could simply make things out of country and avoid first sale rights. This could have affected pretty much every aspect of Americans daily life and is a good first step in restoring Intellectual Property sanity.
It's funny how property rights have historically been a right wring agenda item until they are shown to be just as important to the left as well...
If they wrote it....they'll want the latest edition.
--- Mercutio was right.
There will be a huge push now for electronic books under the guise of "convenience" but what it really comes down to is that they will want to "license" the book rather than sell it. At the same time, the electronic versions will simply continue to make the publishers less and less relevant especially for new titles.
may be found at this link. Surprisingly, Scalia was the only justice from the conservative wing to dissent.
We will bankrupt ourselves in the vain search for absolute security. -- Dwight D. Eisenhower
The majority opinion was written by Justice Stephen Breyer and he was joined by Chief Justice John Roberts and Justices Sonia Sotomayor and Clarence Thomas. The majority opinion was that you loose control when you sell something. Justice Elena Kagan and Justice Samuel Alito said that congress was free to change the law if they wanted, but sided with the majority. The dissenting opinion was written by Justice Ruth Bader Ginsburg. She was joined by Justices Anthony Kennedy and Antonin Scalia.
Legally it wasn't so clear-cut. The case hinged on the wording of the Copyright Act, which grants first-sale doctrine to copies "lawfully made under this title [the Act]." The crucial debate was over the word under. Wiley alleged, and the lower courts agreed, that "under" meant "under the jurisdiction of": since the books were produced outside the US, they were made outside the jurisdiction of the Copyright Act and thus not made under the Act. Kirtsaeng alleged that "under" meant "corresponding to the rules set forth in" and thus the doctrine applied. SCOTUS held with Kirtsaeng.
Everything is better with chainsaws.
Many here do not understand event the definition of capitalism:
private ownership and operation of property
that's all it is.
Denying people's right to private ownership and operation of property is denying capitalism. It's a good thing that this judge went in the right direction, but what is troubling is that this was ever even a question: can people own property?
Can people own and operate private property? Can you sell your own stuff that you made or bought? Isn't that a strange thing to ask in a society that is supposedly capitalist? But of-course it is not a strange thing to ask, because the society is no longer capitalist. Capitalism really exists as a concept in a free market economy, because capitalism in fact requires individual freedom. Denying freedom to the individuals will automatically deny capitalism and what do you have when you do not have capitalism because you do not have freedom?
Well, you may still end up with some people owning and operating private property but not all people being able to do it, because the governing principles changed to deny all people equal protection against government intervention by law.
It is when you do not have equal treatment of people in the context of their relationship with their government by law when you really no longer have free market but you also lose the principles of capitalism for most people.
Again: capitalism is ownership and operation of private property. This is a basic fundamental right, all other rights are only an extension of this one right. If you have no right to own and operate private property, you will not be able to have resources, you will not even be allowed to own and operate your own body. And that's true even today, look at this lack of capitalism, lack of free market and thus lack of freedom even to do what you want with your own body. All these government officials telling you what you must or are not allowed to do, eat, smoke, drink, ingest, who you can and cannot have sex with, etc.
Unfortunately it is now news when a judge actually protects individual freedoms in a rare case of outbreak of common sense or decency or something like that, it's no longer the rule, it's the exception.
You can't handle the truth.
The breakdown of votes is very different to what I'm used to seeing on Supreme Court cases – you've got Breyer, Roberts, Thomas, Alito, Sotomayor, and Kagan in the majority, and Scalia, Kennedy, and Ginsburg in dissent. That's really weird; usually you've got Scalia, Thomas, Alito, and Roberts on the conservative wing voting together, with Breyer, Ginsburg, Kagan, and Sotomayor as the liberal bloc. Kennedy is a bit of a swing vote, though he's gone more with the conservatives recently, and Scalia used to occasionally vote with the liberals on civil liberties cases, but he doesn't any more and is now pretty much an elderly partisan crank. Roberts occasionally crosses the line (as with the decision upholding PPACA) but it's rather unusual to see so much intermixing between the liberal and conservative blocs.
Just goes to show that copyright as a political issue doesn't neatly break down along existing partisan lines.
What happens when you import a pound of marijuana from a country where it's legal to a country where it's illegal?
Do you even lift?
These aren't the 'roids you're looking for.
It's funny -- there are all kinds of incentives for big business to move jobs offshore, or import cheap labor, but when the general public makes use of the same process, they complain. And they got 3 judges on their side, including a "liberal" judge (Ginsburg) and a lieralish judge (Kenedy) and of course Scalia. Expect a legislative solution to be purchased soon so that this "egregious" decision can be fixed and we can go back to falling wages and increasing corporate profits.
What changed under Obama? Nothing Good
will not stop the publishers from making DMCA requests / filling strikes that can cost you $35 a pop.
DMCA request doesn't apply here at all, because no copies are being made. And anything else can now be classified as tortuous interference with a business, so that could get expensive.
Err, electronic versions make them more relevant. Lazy college professors require you to purchase the online license from publishers like those in question(Wiley) because the website comes setup already with all the quizzes, homework, and tests preconfigured. This is basically standard in every university and community college I've researched in the past 6 years or so. It's too easy for the professor to pass up
First sale rights are not something that should depend on a statute to begin with. They should be a self-evident aspect of personal property right that are so taken for granted that they aren't explicitly stated anywhere.
A Pirate and a Puritan look the same on a balance sheet.
If only they wrote a dissenting opinion. I guess we'll never know what they were thinking!
Do you even lift?
These aren't the 'roids you're looking for.
Guise of convenience? I'm pretty sure they really are more convenient...
Electronic copies can be more convenient. But currently, they are not. Why are they not more convenient? Well let me see if I can find a source... Oh yes here it is:
I can easily break the DRM on my books so that I have backups...
If you notice, this person here has to run cracking software just to get their files to play nicely and not destroy itself if this person tries to do the basic tasks of backup or use on an 'unauthorized device'.
You see, they can be more convenient, but they are not. The eBook market is a minefield of incompatibility and artificial restriction. It takes away huge capabilities present in real books, and offers it back in a crippled/reduced capacity and calls it a 'bonus feature'.
Want to give your book to a friend? Hand it to them. Done.
Want to give your eBook to a friend? Well, first lets understand what format of eBook you have, which vendor did you purchase it from. Depending on the vendor, and their software, you might be able to lend it, but only once, or not at all. I'm not sure. Oh wait, your friend is using this specific type of software right? Oh he isn't? Well, guess you can't lend it to him. So he wants to use the software, hope he agrees to all the terms and conditions associated with the use of such software.
Am I exaggerating? A little... No wait, I'm not exaggerating at all, it really is a mass of incompatible formats, competing ecosystems, overly-limited 'rights', and flawed laws which make even your simple 'remove the DRM' action illegal (depending on how cranky a prosecutor is on a given day)
eBooks SHOULD be more convenient, but right now they certainly are not.
Out of modpoints but really liked a post? 1BDkF6TtmmeZ3yqXbz9yhdYVqRYnwFoXDj
They generally make decisions that are pro-establishment. Part of that is because the establishment has better lawyers (business v. individual cases) or the non-establishment is unsympathetic (criminals) or the establishment has some influence on which cases come up (if it loses in the Circuit Court of Appeals, the SG's office decides whether to appeal based on whether or not they think the case is a good test case--so the first circuit case for whether it's okay to record police officers on Boston Common, for example, doesn't get appealed because it's not a good test case for the government) or the justices have experiences on the prosecutorial side of the system and so tend to favor it.
However, they're also nine people looking at the law and making decisions based on what seems to make sense to them, in situations where the law can be read to favor either side. Kind of like where all of the courts of appeals had said that committing a crime "with a firearm" included even having a firearm in your pocket at the time a crime was committed. The Supreme Court overturned every circuit because it was an idiotic reading of the law.
Here, the law is more ambiguous--the question turned on whether a duplication in a foreign country, where the U.S. Copyright Act did not apply, was a duplication "under" the U.S. Copyright Act. Because duplications under the act are susceptible to the first sale doctrine.
The Court held it was a duplication "Under" the act.
Guise of convenience? I'm pretty sure they really are more convenient, my room is rather small and I do a lot of traveling, I can easily break the DRM on my books so that I have backups, but with paperbooks, I'd never be able to keep as many of them.
It's easy to say greedy publishers, and to an extent they are, but unless you're in the habit of buying used books or live in a huge house, you're going to have to get rid of them over time anyways, but with ebooks, you won't likely ever hit that point.
With a licensed ebook you don't have the option of reselling it. When you're done with those paper books, you can resell them and recoup some of your cash. If it weren't for getting screwed on your resale rights, I'd be on board. If the ebooks were like 50% cheaper than print it might be worth giving up on the resale rights. Unfortunately the ebooks I've looked at were the same or more expensive than printed books.
The federal government protects the profits of big pharma by banning the re-importation of medications and medical devices sold in other countries. Hopefully this ruling sets a precedent for a challenge to that ridiculous prohibition. There's no valid reason that a drug should sell for $X in the USA and sell for a tiny fraction of that price just over the border.
Funny how the government is all in favor of "free trade" until it threatens some deep-pocketed special interest group.
A few things to consider.
1: there is a very large and not particaully rich country called india where english is one of the official languages (the other being hindi but afaict that isn't used much for technical stuff)
2: some countries deliberately establish english speaking universities in the hope of being more attractive to foreign talent.
3: Even in the UK which is english speaking and fairly rich afaict there is far less tolerance and pushing of overpriced textbooks than in the USA.
Put all of these together and at a university level there is going to be a pretty big market for textbooks in english outside the USA and in general those outside america aren't prepared to pay as much as those inside america. The textbook vendors want to split the market so they can choose a different "most profitable price" for the USA and the rest of the world.
note: i'm known as plugwash most places but i screwd up registering that here somehow in the past and now can't register
And based on my meeting with a publisher rep yesterday (I work in education, publisher was Pearson) the book is only "yours" for a year. Retake the course, or take the next level up course more than a year later, and you can't even use your "own" book for reference/refresher.
Don't blame me, I voted for Kodos
Convenience? eBooks may be much, but convenient, they are not. Well, at least the ones that are for sale.
A dead tree edition is convenient. My buddy needs to look something up or wants to read it? Here's the book, return it when you feel like it. The only equipment he needs to read it is a pair of working eyes and the knowledge how to translate the printed symbols into meaningful expressions (aka "reading").
With an eBook, first of all the question arises if we have the same kind of reader. If not, well, there's a pretty good chance that he won't even be able to read it, even if I can give it to him, which is anything but a given either because of omnipresent DRM.
If you were talking about some kind of open document then yes, I could easily agree, they're very convenient. I have the PDF version of quite a few papers that I need on my laptop, and it's heaps easier to take those along when I travel. I can also easily hand over a copy to people who want to read them as well (before anyone asks, yes, I do have the right to do so). I can store thousands of pages that would fill a laptop case by themselves and have still lots of room for more and for other stuff.
That would be very convenient if it applied to other documents as well. But eBooks are usually not really like that. They are locked down by artificial restrictions that strip them of the convenience they COULD have.
We used to have a Bill of Rights. Now, with the rights gone, all we have left is the bill.
There are "open book cases" in my town now, think of it as some publicly accessible bookshelf where you put your old books and take home the ones that are there and are interesting to you. At first I thought they'd be plundered the nanosecond they are put up, but it seems to work out pretty well, and they see quite some use, too. One of those things is near the train station I frequent and no matter when I go there, someone's always standing there perusing the book, and people actually do bring books, too, not only take them out.
I kinda cannot see anything like this with eBooks.
We used to have a Bill of Rights. Now, with the rights gone, all we have left is the bill.
Honestly, DRM is the problem. Let's say that we have no DRM, but we still have different standards. Let's say we're talking about pictures, instead of books. Well, you have PNG, JPG, GIF.... Hrmm it appears it's pretty trivial to have one player that can handle all the formats when you don't have the DRM restrictions. The formats would need to differentiate themselves in functionality, or the best would win. The main differentiation right now is the DRM schemes.
I don't think that it matters much what their motivations are, but rather, the stated rationale they give towards reaching their end goal (that is, shouting "eBooks are convenient!" when in reality they just want to lock that puppy down and circumvent first-sale doctrine entirely).
I'm sure they are convenient for both publisher (drops the cost of ink and paper to practically nada), and for many consumers (store it on a tablet!)
OTOH, while you may find it convenient and such, there are a lot of us old curmudgeons out here who prefer their books on paper.
The old-school books don't require batteries or eyestrain, no DRM, and the format won't ever become obsolete. Sure, they take up space and weigh a lot in quantity. So what? I've had a going personal library for decades now, and it's not a bother to me. I have this habit of upgrading the pile once in awhile. This means I get rid of the obvious crap (and any books I no longer have a credible use for), keep the good stuff (the awesome books I want to read over and over again over the years, old textbooks, etc) and over time my little personal library has gained in quality. As a bonus, no publisher or author can ever take them away from me - and not a few of them are even autographed. By the way, I can read 'em anytime I want, even when the power goes out.
Long story short - you go right ahead and chain yourself to the publisher's profit motives. I prefer mine on paper, and I prefer them to be mine once I buy them.
Quo usque tandem abutere, Nimbus, patientia nostra?