Report from the Supreme Court's Kirtsaeng hearing: will you get to go on owning your stuff?

Yesterday, I wrote about the Supreme Court's hearting for Kirtsaeng v. Wiley, which threatens to undermine the very nature of property itself, taking away your right to sell, modify, loan and give away any foreign-made object that has embodies one or more copyrights. The Electronic Frontier Foundation's Parker Higgins has a close reading of the judges' reactions at the hearing. It's hard to know which way they'll go:

Today the Court mirrored our concerns about the right of Americans to resell the goods that they’ve legally acquired — from books to smartphones to cars — just because those goods happen to contain copyrighted materials and were manufactured overseas.

Defenders of Wiley’s position are quick to denounce those concerns as overblown. It's curious, then, that Wiley’s own lawyer, former Solicitor General Ted Olson, was hard-pressed to explain why. Justice Breyer asked about specific examples — buying a book overseas to give to your wife in the U.S., or reselling a Toyota manufactured in Japan with numerous individually copyrighted components — and did not seem impressed with the answers he got. And when Justices Breyer, Sotomayor, and Roberts questioned Olson about the "parade of horribles," raised by Kirtsaeng and supporting amici (including EFF), he asserted that, yes, indeed, sales of foreign made goods might require approval from the copyright holder, whether the seller is a Toyota distributor or a university library:

… if you’re going to use the product created by someone else in a way that’s contemplated by the copyright laws, maybe it’s required that you actually comply with the copyright laws by going to the owner of the copyright and saying, look, here’s what I propose to do, can I have a license to do this?

It goes without saying that a secondary market that exists only with the permission of innumerable copyright holders is a poor substitute for the genuine article. Consumers would be worse off for it, and it’s not what Congress intended.

A Parade of Horribles: Supreme Court Justices Consider the Limits of First Sale in Kirtsaeng v. Wiley

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


  1. A secondary market dependent upon copyright holders will wither and die – witness the plight of some things that can’t be re-released just because they can’t get the music rights.  Every copyright holder will have an incentive to drag their feet, holding off on approval/disapproval as long as legally allowed, before issuing the probably-rote disapproval so the requester has to go through an appeals process (but the owner’s hoping they’ll just give up).
    It will be replaced, of course, by a “dark grey” market where things are sold without permission – everyone will say ‘let them hunt me down – how are they gonna know I sold that copyrighted firmware in my ancient Honda’?

  2. From my UK viewpoint, this makes absolutely no sense whatsoever. It’ll just give so-called copyright holders carte-blanche to veto the re-sale of just about anything. Just how is all this extra work to arrange all these “licences” going to be financed? Total and utter lunacy.

  3. Not what Congress intended?  Was forbidding the recount of votes and appointing the President intended by the framers of the Constitution?  Did Congress really intend for corporations to spend unlimited funds to influence elections?

    This is an activist court.  They will do whatever the hell they want.

  4. Yeah because if this was to stand I totally trust corporations to do the right thing I mean come on a lawyer double pinky swore that they wouldn’t abuse it, what could possibly go wrong?

    It would also guarantee what few (and I stress few) things are still made in America will magically not be made in America any longer. Simply because manufacturing overseas will not only remain dirt cheap but also give them more rights in the US market than goods made in the US, so kiss what few manufacturing jobs the US still has goodbye.

  5. It’s curious, then, that Wiley’s own lawyer, former Solicitor General Ted Olson, was hard-pressed to explain why.

    Recently, because Olson was doing pro bono work (I think I’m correct on that) on behalf of marriage equality in California (which promoted the interests of their rich gay clients in San Fran, BTW) Gays in America act smitten with Olson, but thankfully you mention his status once again on the neocon/corporate side of things.

    To review Ted Olson’s background:

    Counsel for Reagan during Iran-Contra.

    Founding member of the ultra-neocon outfit, Federalist Society.

    Worked on Richard Mellon Scaife’s “Arkansas Project” (to dig up any dirt on the Clintons).

    Litigated Bush v. Gore to steal the 2000 presidential election in America.

    Did a bunch of dirty stuff as Bush’s Solicitor General.

    Litigated on behalf of Citizens United, successfully winning the most egregiously anti-democracy predatory jurisprudence ever passed by the criminal US Supreme Court.

    Was last seen, prior to this case, prepping Paul Ryan for the VP debates.

    An now this ……

  6. This is definitely what congress intended. The right of copyright holders to restrict importation has been the law for more than three hundred years In the US, the first Congress signed it into law. It has remained the law in substance ever since (i.e. for pretty much the entire history of the United States). What Congress didn’t intend was that the Supreme Court would, however justifiably, tweak that law so that it wouldn’t benefit shampoo and watch manufacturers Now it’s just a debate over how, not whether, Kirtsaeng should lose.

    I suspect that everyone wants business as usual, or at least as it was before a few corporations started trying to use copyrights for more than they’re intended. The sad thing is that the Supreme Court, unlike the 9th Circuit Court of Appeals, hasn’t recognized “copyright misuse” as a defense. Instead, they’ve fudged the first-sale doctrine to make it a bit broader and now it’s not working quite right. Perhaps they should have left it to Congress. Anyway, no one involved in this case on either side has asked for the first sale doctrine to no longer apply in any way to goods manufactured overseas. The publishers, the government and (it sounds like) the SCOTUS are trying to craft an interpretation that results in the first sale doctrine applying after the first sale in the US. After all, if you wanted to go after someone for violating your copyrights in another country, you’d have to use that country’s laws anyway.

    What BB and the EFF are afraid will happen would be really bad. I guess it’s a good thing they and the apoplectic defendant in this case are the only ones talking about it. I expect more from BB and the EFF generally and see this whole discussion as a disappointment. I know this is blog and everything, but I read it because it’s usually a bit better informed.

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