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]

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]