Act now: your right to own property is being considered at the Supreme Court today

On the EFF's Deep Links blog, Parker Higgins presents the stakes in today's Supreme Court hearing for Kirtsaeng v. Wiley, which concerns the right of a student, Supap Kirtsaeng, to import textbooks from overseas and sell them in the USA. Wiley, a textbook publisher, argues that even though the books Kirtsaeng is selling are his property, that they have the right to dictate how and whether he may pass it on. Normally, copyright is limited by "first sale" -- once a copyrighted work has been sold once, it is the new owner's property. But Wiley argues that works that are manufactured offshore (that is to say, nearly everything!) are not subject to first sale. That means that everything from lending library books to selling used CDs to selling, giving away or lending practically every kind of electronics (all of which have copyrighted software that comes from offshore) will only persist with the permission of rightsholders, who can withhold it, or charge arbitrary sums for it.

It's good that the Supreme Court is hearing Kirtsaeng this term — in fact, we joined a brief encouraging them to — but the story isn't necessarily over once the decision comes down. The next step might be for Congress to respond with legislation. If so, they need to know what consumers think: if it looks like a sale and feels like a sale, it's a sale, with all the accompanying rights and privileges. We're joining our friends at Demand Progress in giving you tools to ask your Congressmembers to defend your rights in your digital goods.

We know how vigorous the copyright industry lobby is about pushing for laws in their favor, even when they're against the public interest. It's important we let Congress know now that we want to see first sale alive and well and protecting our rights in the things we buy, even if they are digital goods and the sale is labeled a license.

If the copyright industry has its way, you may have to seek permission or face penalties when you resell or tinker with the things you've bought. And if that comes to pass, then we've all been owned.

Your Right to Own, Under Threat

You've Been Owned: Stand Up For Digital First Sale [EFF Action Center]


  1. It’s strange.  Because think beyond resale of an object.  How about destruction?  Or better yet, unconventional reuse?  Will they have the right to arrest you for turning that book into a TV stand?  Or cutting pictures out of it for an art project?  Or throw your daughter in jail for tearing pages out of it to start a fire because you’re cold?  It’s sounding more and more like Sharia law.

    1. It actually sounds nothing like sharia:

      Under sharia law, however, ownership of all property ultimately rests with God; while individual property rights are upheld, there is a corresponding obligation to share, particularly with those in need.[82] The laws of contract and obligation are also formed around this egalitarian Quranic requirement, prohibiting unequal exchanges or unfair advantage in trade. On this basis, the charging of interest on loans is prohibited, as are other transactions in which risks are borne disproportionately to the potential returns between parties to a transaction. The limits on personal liability afforded by incorporation are seen as a form of usury in this sense, as is insurance. All these inequities in risk and reward between parties to a transaction, known collectively as riba, are prohibited

      via wikipedia

      1. Then what’s the Sharia law that permitted the authorities to throw the disabled daughter in the slammer, where she’s facing public execution for tearing a few pages out of the Quran to start the family fire?  That’s what I was referring to, specifically.

        1.  sharia certainly wouldn’t prohibit tearing pages out of a Wiley book – the Quran is a special case, not that I agree with executing anyone for ripping it up – and no, i’m not advocating its destruction either.

  2. Not only that; think of the implications for American manufacturing. Why would any company manufacture anything in America, under such a rule, when they could give themselves enormous advantages by manufacturing it overseas and importing it?

    1. I don’t think that’s exactly what’s at stake here.  The difference being if a copyright holder manufactured something out of US, then imported (like a car) the 1st purchase was made on US soil, therefore, the standard 1st purchase doctrine applies.  The case at hand was from someone making 1st purchase from the copyright holder out of the US’s territory, then importing/selling.

      1. First they came for 1st sale products purchased outside of the US and I said nothing because I didn’t buy things overseas for resale in the US…

        Give them an inch and they’ll keep coming for more of your rights.

  3. “Wiley argues that works that are manufactured offshore are not subject to first sale.”  WTF kind of argument is that!?!?  Why in the world would it matter where it’s manufactured?

    1. Because it lets them claim another right to hold onto.

      They often make things for other markets that have a lower price, and the entire economy woudl collapse if we all paid the lower prices!!

      or something…

      1. Wow, the book industry is too lazy to make needlessly incompatible versions for foreign markets. They already do this domestically to kill the used book market (by re-arranging the numbering of the homework problems). I mean, if the MPAA can do it, why can’t Wiley?

  4. I used to work with an organization that sold educational books in a few different countries (including Thailand). Companies like Wiley, McGraw Hill and others would donate old editions of their books and we would sell them for the cost of transport. There was always a strict rule though that we couldn’t sell them in western countries, as students there were expected to pay the full price. The companies were donating the books partly for tax purposes and also to make them affordable to the people there, so we weren’t allowed to take our own cut of the price. A thick hardback medical textbook that was not that old would go for about $5, and you’d often see them in the local bookstores afterwards. Although there was always a big sticker saying that the book was only for sale outside the US, it would be quite possible to make a nice profit sending the books back there, especially as the buyers wouldn’t see the sticker if you sold them online. If that was the case (and it seems it might have been, seeing that he made around $40,000 doing it) you can understand why the publishers were less than happy with him continuing.

    Still, a $600,000 fine seems like a lot, given that he wasn’t even copying anything.

  5. Can we stop calling them rightsholders?

    Rights are legitimate things, like freedom of speech, freedom of movement, freedom from extortion, privacy, bodily autonomy, or the right to know what public institutions are doing in our names.

    Mights are whatever the intellectual mercantilists can buy from their politicians.

    Copymight, intellectual robbery mights, mightsholders…

      1. Copyright isn’t a right though. It’s a legally granted monopoly conditional upon the public (via the government) agreeing to suspend their natural right to do whatever they want with their property in exchange for incentivizing the creation of new works that promote the progress of science and the useful arts. And effectively perpetual copyright durations have already broken that contract.

  6. How can the Supreme Court be hearing this today when the Federal Government in DC is closed for hurricane Sandy? I work in DC, and the whole place is shut down.  I seriously doubt the Supreme Court is open.

  7. I think some people are missing the point. Wiley are not saying “there is no such thing as first sale”. They are saying that “first sale  occurs when the goods are first exchanged on american soil”.

    So if you want to re-sell your CD’s that you bought from Wall-mart, you’re fine. You can even re-sell the Japanese 7″ import stuff you bought from the boutique hipster record store (though the store would soon be sued out of existence).

    The whole thing is an attempt to ban grey imports. Wiley are arguing that if you buy something in another country, and if your copy has never been sold in the USA, then you can’t re-sell it in the USA without the copyright owners permission.
    This is because it has never been sold in the USA – so there has not been a first sale under USA legal juristriction. Therefore, you are the original seller and need permission from the ‘owner’ under USA law (i.e. the owner of the USA copyright).

    It could cause a lot of problems, but “I can’t have a yard sale” is not one of them.
    It’s a huge problem for USA manufacturing, since anything made in the USA will have its first sale in the USA. So if an American company sells some discounted items to the Chinese market, this counts as a first-sale so they get no copyright protection if the goods get imported back again from China.
    However, if an American company licenses a Chinese manufacturer to make the item, then there has been no sale in America, so there’s no first-sale and they are protected by copyright when imported to America.

    It’s a massive problem for software/hardware, which is why WiIley MUST fail. Electronics are generally made outside of America, but have software that is copyrighted in America. Wiley’s arguments would require the permission of the copyright owner to sell any electronics in America if any of their software is copyrighted.
    It’s not clear (and IANAL) if you could set up a licensing agreement to also cover any potential copies of the software that might be imported. You probably could, but that wouldn’t help in the case of any currently existing electronics supply and sales contracts (which I imagine have a value of trillions of dollars).

    Samsung make a new tablet/phone/whatever. It uses a 3rd party chip to handle voice recognition, which contains copyrighted software in the chip’s ROM. Samsung buy the chips wholesale. The seller of the chips has fully licensed the software worldwide from the copyright owners. The chips and tablet are made outside the USA. Samsung try to sell the device in the USA. They can’t, because first sale doesn’t apply to the chips, so Samsung have to negotiate terms with copyright owners to ‘re-sell’ the chips.
    If you imagine that a tablet might contain dozens of components, which all have copyrighted elements – then it becomes nearly impossible to sell them because of all the copyright permissions that must be negotiated.

    Similar, anti-grey-market laws are in place in the EU, though I suspect they are based on another legal argument, rather than twisting the wording of an old copyright act, as Wiley (and Omega, and others) seem to be doing. 

    1. I can see a near future where you won’t be able to sell your used car. Simply because the software that makes it work is copyrighted. Bang… you’re dead in the water with the same car forever. Heh. Or every single car will have to be made outside the US… or outside the planet so the laws won’t be apliable.

    2.  If something like this deserves to fail (and it does) its certainly not because its going to hurt corporate bottom lines by adding additional layers of negotiations and licensing.

    3. @boingboing-9391235f66f16a637186cd09110e1672:disqus  : “This is because it has never been sold in the USA – so there has not been a first sale under USA legal juristriction. Therefore, you are the original seller and need permission from the ‘owner’ under USA law (i.e. the owner of the USA copyright).”

      Are you sure you have this right?

  8. Yeah so their argument seems to be

    We get to gouge your market because we already gave your market the finger by manufacturing our products outside of your market. They created a grey market by charging as much as they do, because that’s the price student loans will bear…..

    All I can say is that my faith in SCOTUS is really riding on this decision.
    I’d also be quite pleased if this sparked a nasty little price fixing investigation.

    1. Faith in SCOTUS?  You have that after Bush v Gore and Citizens United?

      Are you looking for investment opportunities?  I am very trustworthy.

      1.  In fairness I sorta gave up on our Electoral College based system back when I was in High school. I could sorta understand the need decades ago when aggregating the data would have been difficult but in this day and age having something that can just disregard the popular vote seems counter to the point of the system.

        Then again my faith in the populous as a whole is a bit shaky too >.>

        1.   “The best argument against democracy is a five-minute conversation with the average voter.”

          –Winston Churchill

          I’ll still take it over (almost) any other system, but I know what you mean.

          1.  “It has been said that democracy is the worst form of government except all the others that have been tried.”  Another Churchill quote; I mistakenly thought it was Twain at first.

    1. Proudhon said that, not Marx. And Proudhon was thinking of monopolistic and absentee property generally, although he also condemned intellectual ‘property’ specifically.

  9. How did this even make it to the Supreme Court? The 2nd Circuit Court of Appeals grossly mishandled this case by concluding first sale does not apply to good manufactured outside the US. 

  10. The modus operandi of the Roberts court is roughly thus: if it’s a bad law which benefits the plutocrats, they will decline to challenge it. “That is not the function of the judiciary,” they will say. If it’s a bad law which has created some loophole to the general advantage, they will strike it down, unless they determine that the legislative branch is likely to preserve or increase the elements of the law which are progressive, redistributive, or otherwise protective of the general welfare.

  11. I can’t stand this law, but these effects do seem to be exactly what congress intended. I think it’s our representatives that stretched and mutilated the already stinking body of copyright law, and not necessarily the publishers. The relevant section of the code reads “Importation into the United States, without the authority of the owner of copyright under this title, of copies or phonorecords of a work that have been acquired outside the United States is an infringement of the exclusive right to distribute copies or phonorecords under section 106, actionable under section 501″

    That’s horrible, because copyright, as far as it was ever a wise decision, was supposed to be about the right to make copies, not to distribute legal copies that already exist. But it does seem to say exactly what Wiley claim it does. If it only applied to copies that were created without authorization, they were already illegal under the other sections.

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