Supreme Court case will decide whether you own your stuff

Writing in MarketWatch, Jennifer Waters explains the implications of a Supreme Court case, Kirtsaeng v. John Wiley & Sons, which turns on the question of whether you have the right to re-sell things you buy out of the country, or whether the copyrights embodied by your phones, clothes, gadgets, books, music, DVDs, and other possessions mean that you can't sell your stuff without permission from the original manufacturer.

Following Wiley's theory, you don't really own most of your possessions. You share ownership in your goods with the companies that made the goods you "bought" from them, and they get a veto over your disposal of them, and can also demand a cut of the proceeds.

Put simply, though Apple has the copyright on the iPhone and Mark Owen does 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.

“It means that it’s harder for consumers to buy used products and harder for them to sell them,” said Jonathan Bland (sic: Jonathan's surname is actually "Band"), an adjunct professor at Georgetown University Law Center, who filed a friend-of-the-court brief on behalf of the American Library Association, the Association of College and Research Libraries and the Association for Research Libraries. “This has huge consumer impact on all consumer groups.”

Your right to resell your own stuff is in peril


    1. A watch maker tried it.  They added a tiny little copyrighted logo on watches to stop Costco from getting watches made for the nonUS market cheaper.

      1. Sounds like a trademark issue to me, not copyright. Or perhaps copyright has become a catchall for what they like(d?) to call intellectual property…


          They got busted for copyright misuse, but the fact they thought they could do this shows a scary trend in the law.

          Techdirt also has some discussion about this case

          As well as repeating the coverage from The Atlantic on the insane things that would be violations of the law if they decide this poorly.

  1. Seems like a bad deal, they get to retain all of these extra rights but when the fing thing breaks they want more money to repair what they claim is still their property.

    1. I think so too.

      If it is their property, the buyer is just paying for the service, therefore if it stops working  even after warranty they must fix it. 
      Or is it that the corporations want total control and benefits, but none of the responsibilities? Now that wouldn’t be the corporate thing to, do would it?

  2. This is even bigger than people are implying.  Do I own my home, or does the architect and designer have rights that prohibit me from selling?  What about my car, which is chock full of patents and copyrights?  Used appliances?  Even the real estate my house is on is treated with patented chemicals, masonry boarders and walls, and even designer plants.  

    This goes to the fabric of a free society; property ownership.

    1. I sell used books online. So, I’m familiar with this case. And it’s actually a good deal smaller than the posting implies.

      Copyright law prohibits the import and sale of copyrighted works produced overseas without the rights holders permission. In this case a college student bought international editions of his textbooks from his home in Thailand and later tried to resell them in the U.S. (something that has always been understood to be illegal by booksellers).

      If whatever you want to sell was legally imported into the U.S. before you bought it this case doesn’t apply. If it can’t be distinguished from copies that can be legally sold in the U.S. it’s not enforceable.

      1. Interesting information, do you have a good source that can be added to the summary as a counter-balance?

      2. “without the rights holders permission”
        And if it was legitimately produced as in this case?

        The dissenting Judge in the first time this case came up pointed out something obvious.

        The statutory text does not refer to a place of manufacture: It focuses on whether a particular copy was manufactured lawfully under title 17 of the United States Code. 17 U.S.C. § 109(a). The United States law of copyrights is contained in title 17. Accordingly, the lawfulness of the manufacture of a particular copy should be judged by U.S. copyright law. A U.S. copyright owner may make her own copies or authorize another to do so. 17 U.S.C. § 106(1). Thus, regardless of place of manufacture, a copy authorized by the U.S. rightsholder is lawful under U.S. copyright law. Here, Wiley, the U.S. copyright holder, authorized its subsidiary to manufacture the copies abroad, which were purchased and then imported into the United States.

  3. Forget owning the means of production; at this point the people barely even own the products.

    This is how feudalism worked, by the way; figured I’d mention.

  4. The absurdity of our current place in history can be mostly accounted for by the reification of legal models. I would laugh, if it didn’t hurt so much.

  5. I assume we can still give them away, or are we prohibited from gifting as well?  It’s all very shoddy.  

    1. Depends, have you purchased a gifting license? Don’t worry, it’s not terribly expensive to license the limited and non-transferable right to give away items you’re licensed to store and use. You will, however, also need to purchase a licensing license in order to purchase the license. Don’t worry, it’s not terribly expensive to license the limited and non-transferable right to purchase a license… We only require that you sign your soul over to the company store.

    1. Only for the issues that directly affect them, the rest of us can look forward to frequent forceful encounters with uniforms.

    1. Explanation? Why would he need an explanation? It’s easy. Absolutely easy. For most of it’s first hundred years, the Constitution existed to protect slavery and insider deals. Hamilton made a killing off of the debt guarantees. Washington made a killing off the Whiskey Tax, and he was a slaveholder. It’s easy, once you understand who the Constitution was supposed to aid, and who it was supposed to stop.

  6. This case is about school textbooks. I recently purchased via eBay a book written in the USA but printed in India. The price was a fraction of the US price. The publishers sell books abroad for less money, since they want market share and their US prices are ridiculously high. They’ve sued this guy for reselling Asian books in the USA for a profit.

    I doubt that the publisher has a leg to stand on, but you never know what the courts will say until they say it.

    1.  Outsourcing overseas is fine if you’re a corporate overlord, but if you’re one of the little people, it’s theft.

    2. Arbitrage. Okay if it makes the markets more efficient when it makes “them” money, but not if it save “us” money …

  7. This case is being so twisted out of proportion it’s not even funny.  It involves very complex laws involving the gray market and importing.  It will have no effect at all on the average person. 

    1. Isn’t the point that this sets a precedent? And complex laws are always the most dangerous kind.

      1.  It really doesn’t set an individual precedent. It will determine the bounds of the first sale doctrine and hopefully make clearer what protection the individual consumer has that a wholesaler and distributor do not. Kirtsaeng was not acting as an individual consumer but a importer and distributor and should lose and lose hard. The post here and the linked article are preposterous hyperbole.

    2. Wrong. Imported records and CDs have always faced being confiscated at record fairs or stores. Postal officials have seized such materials as well. Collect PAL DVDs or Japanese video games? See how quickly such becomes contraband. This is about market share profits trumping individual rights.

    3. Give them an inch and watch them take a mile.

      You might be correct this case itself more than likely won’t affect the average person, however using this legal decision the cartels will tighten their grip on content and chase more people to make up for imaginary lost dollars.  They will push the costs of that fight off onto the taxpayers, getting the government to act as their enforcers because it is illegal.
      Or did you miss Dajaz1, Rojodirect (sp), Megaupload, and many other sites taken offline at the behest of the cartels and when it came time to present evidence they couldn’t be bothered.

      This case highlights the crazy idea that even today with the world interconnected as never before they still pretend there are regions that have to be maintained.  That their profits need to be protected by law.

  8. . You share ownership in your goods with the companies that made the goods you “bought” from them,

    I guess the next person to kill someone with a gun should go ahead and let the manufacture know that the police will be visiting them.  Obviously they share ownership, it’s just as much theirs as it is the person purchasing it.

    The only area where this should even be considered “grey” is in the digital realm, and I mean purely digital.  Not CD or DVD, not games or software, but downloaded content.  In that form it’s possible to “clone”/copy a product (like an mp3) and then resell it while still retaining the original.  (This of course can be done with CDs, but technically that’s already illegal I believe.)

    1. Well then, what happens when we can effortlessly produce “clones” of physical objects ? (see : 3d printing).

  9. I am confused. It makes me think about Artists. They sell a work. Then the owner sells it to someone else later for more (because the Artist is now more popular). Does the Artist get a cut of the buyers profit? No. How it this different?

    1. You’ve not been paying attention.  There are laws, in France I want to say, where artists are entitled to a cut from every transaction involving the work.  In TX I believe there was a condo builder who slipped in wording in the contracts giving them a cut every time the house sold.  And I think that stupid “artwork” that resold itself on ebay over and over had a contract giving the “artist” a cut of every time it sold.
      Item 15 in the terms.

      You were saying?

      1. There are laws, in France I want to say, where artists are entitled to a cut from every transaction involving the work.

        This is called droit de suite in France and it is now part of European Union law. In the UK we call it artist’s resale right.

  10. The title fooled me. I was very positive about it at first, in a John-Lennon-Imagine-No-Possessions kind of way. Then I realized it was referring to other people owning my stuff in lieu of me.  That’s less cool.

  11. Anyone watching the IBM-SCO lawsuit over Linux ownership will understand the phrase “slander of title”.

    This lawsuit is a harbinger for the decline of predatory fees for publicly funded documents, a practice most significantly embraced by Wiley, ScienceDirect, and Elsevier. I look forward to the gutting of their business model.

  12. So the companies that make your goods are Harry Potter goblins.  That sounds about right.

  13. I thought the article reference to “stuff” was more internal – as in DNA, etc. What the court will eventual be forced to conclude is: “We” own nothing, but are in fact owned from the moment we are “born” (read; manufactured by an owned womb).

  14. Hopefully the court will find a way to rule narrowly against this defendant, and uphold both a seller’s right to charge whatever they can for the book and a buyer’s right to pay the lowest price he can for it and then resell it when he’s done.

  15. Let’s play this out: I give a company money and in exchange they give me goods or services. If by some twist of logic I don’t have the right to do as I please with those goods or services, then by extenion those companies are similarly restricted in the exact same manner from doing what they please with the money I paid them. Since they exchanged their product for my money, according to my EULA they don’t actually own my money, but rather are leasing it.

    1. I like it. And it’s money, so you can charge interest on it. And physical goods usually depreciate. Hey, this could … wow.

      Let’s do it.

  16. since Apple start to become bigger then ever now they OWN an LAW .So this make you more happyer person or week up you from your long term freedom dream..
    Im sorry but i don’t understand your point ..This is a test or its reality ? This is The American dream with all your illuminati stuff ? 
    Europe say America is the cancer of the earth ..who know maybe is bad or maybe is true ..depend of you people what will happen next ..but it seams you like the ideea ..So you worck hard for your 1200$ per month and then you pay 40% taxes from your income ..then pay rent, banks , insurance …etc then you spend money on GMO food ..and like this everyone is happy ..Now come the time when you start to vote and you will make the right decision for you ..maybe next year will start a nother war with someone else ..And easy easy you cover the lost from robing and killing other countrys ..Fuck i don’t want to know more of your American history .. Then What ! ?
    Sorry im not indian or taliban or terrorist European citizen and when i read news about your country make me piuck 

  17. What about your house? drywall from mexico, wooden frame from canada, granite countertops from greece, wooden floors from brazil, nails from china. 

Comments are closed.