The article goes onto explain that “Three courts came out three different ways because the language of the law is confusing and it appears to lead to “absurd” results (in the Ninth Circuit’s words).”
This seems… well, absurd to me. I can understand that I cannot make my own iPad using copyrighted technology and sell it, but we are not talking about the ideas behind the technology, we are talking here about a physical device.
IOW, I can see how ripping a CD to sell the audio files is illegal but if I buy a CD, I should be able to sell that CD when I decide that it sucks. I should be able to sell my old iPod when the new one edition comes out.
It seems ridiculous that I can’t… Right? This is copyright law gone crazy… The ideas shouldn’t be the physical things made from the ideas.
I looked up a couple of other articles on it, and I have to say, it seems like a no-brainer that you should be able to sell your own possessions even if they’re made abroad.
I have just finished reading the linked decisions. Unless I am missing something, while there is a legitimate copyright question here, the article is simply incorrect at best, and blatant fear-mongering at worst.
The lower court decisions are all about people who purchased items abroad, and then imported them into the US without the permission of the copyright holder and tried to resell them in the US. None of the decisions relate to items legally purchased in the US, and none of the decisions can lead to the ridiculous scare scenarios the author of this article dreamt up.
The uncertainty in the law is how the first-sale doctrine interacts with the right of copyright holders to control imports of their products into the US. It has nothing to do with items legally purchased in the US.
Even if I am wrong, I cannot imagine that the Supreme Court won’t find that the first sale doctrine applies to any product legally sold in the US. Let’s hold off on the frothing-at-the-mouth until this doesn’t happen, okay?
Now, if you were to travel to Britain, buy an iPad there, and then bring it back to the US and try to resell it (either immediately or years later), you might in fact have a problem under these decisions. But that is a much narrower set of circumstances, and a much harder issue to resolve fairly given all the other issues involved with international trade, than what the author of that article describes.
I’m not sure I follow you - you’re saying that these court decisions are only about items purchased abroad, imported by the purchaser and resold. However, the linked article says that courts have interpreted the law to say that any item manufactured abroad is not subject to first-sale doctrine, regardless of whether they are first purchased abroad OR in the US.
This is not my area of law, but can someone explain to me why Quality King Distributors, Inc. v. L’anza Research International, Inc., does not control the outcome here?
I’m wondering where all those nebulous license agreements might come into play here - iPods/iPads/Androids, whatever - you install lots of apps from the appstore - they all have some form of fine print -
In Quality King, the goods in question were manufactured in the U.S., exported overseas, sold, then reimported to the U.S. In one of the cases that the Atlantic article is talking about, John Wiley & Sons, Inc. v. Kirtsaeng, 654 F. 3d 210, the goods in question were manufactured overseas. Evidently, that’s one of the big things the Second Circuit used to distinguish Quality King. From John Wiley:
The Supreme Court had a chance to settle the question of whether first-sale doctrine should apply to foreign sales with Costco v. Omega S.A., 131 S. Ct. 565 (2010) and ended up affirming the Ninth Circuit per curiam 4-4, in a three line decision. Gee, thanks for the help, guys. The Second in Wiley stated that the Ninth held in Omega,
IANAL, but this looks like a giant overreach by IP rights-holders. Just how many times would they like to be paid for the same protected work?
Quality King concerned products made in the US, exported, and subsequently reimported. These cases concern products manufactured outside the US. I think the distinction is important because the Quality King court distinguished between the two categories in its reasoning:
It is not about being paid twice. They want to be able to sell their product at lower prices in markets outside the US, without worrying about third parties buying their product in those markets, importing it into the US themselves, and reselling it for a profit.
Plenty of companies do this, for various reasons. Perhaps they wish to establish a presence in a developing country, so they sell their product very cheaply at first, intending to raise the price as the country becomes more prosperous.
Copyright law allows the copyright holder to prevent third parties from importing copyrighted goods for the purposes of resale into the US without permission of the rights holder - unless those goods were manufactured inside the US to begin with.
There is an explicit exception in the law if you are simply importing an item for your own personal use - another reason why the linked article in the OP is bogus.