October 8, 2012

“Your right to resell your own stuff is in peril”

Of course it is. Private property as a cornerstone of individual liberty? That whole idea is like, over a hundred years old! Marketwatch:

Tucked into the U.S. Supreme Court’s agenda this fall is a little-known case that could upend your ability to resell everything from your grandmother’s antique furniture to your iPhone 4.

At issue in Kirtsaeng v. John Wiley & Sons is the first-sale doctrine in copyright law, which allows you to buy and then sell things like electronics, books, artwork and furniture, as well as CDs and DVDs, without getting permission from the copyright holder of those products.

Under the doctrine, which the Supreme Court has recognized since 1908, you can resell your stuff without worry because the copyright holder only had control over the first sale.

Put simply, though Apple Inc. has the copyright on the iPhone and Mark Owen has it on the book “No Easy Day,” you can still sell your copies to whomever you please whenever you want without retribution.

That’s being challenged now for products that are made abroad, and if the Supreme Court upholds an appellate court ruling, it would mean that the copyright 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.


Another likely result is that it would hit you financially because the copyright holder would now want a piece of that sale.

It could be your personal electronic devices or the family jewels that have been passed down from your great-grandparents who immigrated from Spain. It could be a book that was written by an American writer but printed and bound overseas, or an Italian painter’s artwork.

There are implications for a variety of wide-ranging U.S. entities, including libraries, musicians, museums and even resale juggernauts eBay Inc. and Craigslist. U.S. libraries, for example, carry some 200 million books from foreign publishers.

“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.

The case stems from Supap Kirtsaeng’s college experience. A native of Thailand, Kirtsaeng came to America in 1997 to study at Cornell University. When he discovered that his textbooks, produced by Wiley, were substantially cheaper to buy in Thailand than they were in Ithaca, N.Y., he rallied his Thai relatives to buy the books and ship them to him in the United States.

He then sold them on eBay, making upward of $1.2 million, according to court documents.

Wiley, which admitted that it charged less for books sold abroad than it did in the United States, sued him for copyright infringement. Kirtsaeng countered with the first-sale doctrine.

In August 2011, the U.S. Court of Appeals for the Second Circuit upheld a lower court’s ruling that anything that was manufactured overseas is not subject to the first-sale principle. Only American-made products or “copies manufactured domestically” were.

[…] a decision in favor of the lower court would lead to some strange, even absurd consequences. For example, it could become an incentive for manufacturers to have everything produced overseas because they would be able to control every resale.

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.

This is a particularly important decision for the likes of eBay and Craigslist, whose very business platform relies on the secondary marketplace. If sellers had to get permission to peddle their wares on the sites, they likely wouldn’t do it.

Moreover, a major manufacturer would likely go to eBay to get it to pull a for-sale item off the site than to the individual seller […]

In its friend-of-the-court brief, eBay noted that the Second Circuit’s rule “affords copyright owners the ability to control the downstream sales of goods for which they have already been paid.” What’s more, it “allows for significant adverse consequences for trade, e-commerce, secondary markets, small businesses, consumers and jobs in the United States.”

It’s so cute when the capitalists describe as a bug what it is those looking to topple our system and redistribute global wealth and power consider a feature.

At any rate, I wonder:  would foreign “copyright holders” looking to get a cut of resale monies have any kind of policing power in the US?  That is, even if the Roberts court goes along with the destruction of the modern capitalist system and incentivizes US businesses to move production and jobs overseas in order to claim resale tribute, wouldn’t the proper response of the US citizen be to tell any country wishing to reach a US market to either wave the right, or else we boycott their stuff?

For its part, a (hopefully) GOP controlled Congress could then fast-track a grandfather clause before working to rewrite legislation to fix the problem — which shouldnt be a problem, were we not so hellbent, apparently, on committing national suicide.  Or maybe murder is the better metaphor, depending on which side of political aisle you site.

So, I ask again, because I need to be sure:  What the fuck country is this again?

(h/t Johninfirestone)

Posted by Jeff G. @ 11:44am

Comments (3)

  1. So, I ask again, because I need to be sure: What the fuck country is this again?

    I don’t know the name, but it’s definitely some sci-fi writer’s dystopian fever-dream.

    Wake UP already!

  2. – This is a red herring in some respects by the self same overseas manufacturers trying to re-game a system they already routinely game as it is, and have it both ways. For many decades American manufacturers had to sit helplessly as foreign sources ripped off American products in every way imaginable, but now the situation is reversed.

    – Both South Korea and Taiwan have been end running trade laws with back-door sales and imports, even against their own legal distribution networks, and it works both ways.

    – During the 80’s and 90’s, both countries were in the US buying up electronic chips by the millions for use in low cost knock-offs of American brand name PC’s. There is almost always a constant flow of black market goods of one sort or another, albeit the issues and the problems change with changing world economics and sources for those goods and services.

    – With globalization, and so much manufacturing moving offshore, many of the tactics and revenue flow models have changed, so you see this attempt to regain the advantage. Foreign manufacturers are afraid of lack of control in other countries. The problem of American knockoffs as overseas labor and material costs rise and become less competitive, and no real control over trademarks and patents on foreign soil.

    – The exact opposite of where things stood for years with trade. But of course, unless we’ve totally lost our minds, a ‘cutting the baby in half’ solution would be economic insanity.

  3. This is a red herring…

    BBH, are you saying that a bunch of electronics fabricators in SE Asia got an American textbook publisher to bring suit on their behalf?