Posted by Kromey at 7:21pm Jun 12 '12The Supreme Court case concerns something called the "first-sale doctrine" in copyright law. Simply put, the doctrine means that you can buy and sell the stuff you purchase. Even if someone has copyright over some piece of your stuff, you can sell it without permission from the copyright holder because the copyright holder can only control the "first-sale." The Supreme Court has recognized this doctrine since 1908.Pretty straightforward and logical, yes? You bought it, you can sell it to someone else. So what could possibly be at issue here?
To use a classic example, imagine you buy a novel by Sabina Murray. Sabina owns the copyright to the book, so you can't make a copy of the book. But you bought a copy of the book, and can sell the copy to anyone who'll pay you for it. You can sell it to a neighbor, to a fellow student, or to someone else on Craigslist or on eBay.
Don't get ahead of yourself -- this is not a new test of the Digital Age, but rather a bizarre twist whose particulars are remarkably similar to this "classic example":
John Wiley & Sons, a textbook publisher, sells expensive versions of the textbooks here and less expensive versions abroad. Supap Kirtsaeng, a foreign graduate student at University of Southern California, decided to help pay for his schooling by having relatives buy him copies of the foreign versions abroad, send them to him, whereupon he'd sell those books on eBay to willing students. He'd make money, the students would save money, but Wiley might have fewer sales of its pricey American versions. The case is styled Kirtsaeng v. John Wiley & Sons.Well, wait a second -- this doesn't look like "first-sale doctrine" territory anymore to me. This looks like importation and distribution. So where's the connection?
Both the District and Second Circuit courts held that any product manufactured abroad is not subject to the first-sale doctrine. For instance, that iPad you sold. You noticed this statement: "Designed by Apple in California. Assembled in China." Same for the iPods you've owned, the iPhones, and the MacBooks. Because those products were manufactured abroad, according to the Second Circuit, the first-sale doctrine doesn't apply to them. You need the permission of every copyright holder to sell the iPad.Woah! This means it's illegal to sell your old iPod, many of your childhood [private]s, and even decks of cards if they happen to have been printed in Taiwan or China or something!
That means, you need to ask Apple for permission, and probably Google, whose Maps software comes bundled with the iPad, and includes Google copyrights. Under this rule, when you sell some of your stuff on eBay or Craigslist (a couch, some books, electronics, posters, an old television, a toaster), you have to look up whether it has a copyrighted logo anywhere and find out whether the product was manufactured in the U.S. or abroad.
This just doesn't make any sense to me. I can see wanting to shut down an explicit for-profit operation taking advantage of price disparity here versus abroad (and while I think it's a direct result of deliberate price-gouging, it's nonetheless unauthorized importation for commercial gain), but the decision here goes way too far, arguing that "first-sale" doesn't even apply if something happens to have been manufactured overseas!
Can you imagine the consequences? At a time when American industry is still struggling to recover from the recession, this decision in effect grants significant additional legal protections to foreign-made goods that American-made goods simply can't compete against -- namely because it drives up the prices of foreign-made goods, which will lead to American companies shipping their manufacturing overseas so they no longer have to compete with secondhand sales of their own products!
Whether you're a free-market libertarian, a God-and-guns conservative, or a nanny-state liberal, I think we can all agree that when you buy an item you also gain the right to sell it again later -- that's just basic common sense, not political ideology!