Banning resale of items made overseas without getting patent or copyright holders permission?

Easy. One, someone isn't getting their palm greased, and two, there's big bucks at stake. Here's the case in question:

Supreme Court Will Hear Case Over Foreign Textbooks Imported and Resold in U.S.

From the article: The plaintiff is a Thai national who was studying for an undergraduate degree at Cornell University and had his family send him copies of Wiley textbooks that had been printed and purchased abroad.

So this enterprising Thai student attending college in the US of A, likely on an austere food budget, discovers that the very same textbook that he'll have to acquire at $39.95 used can be purchased back home for $1.17 new. Huh. How about that?

After he made it through final exams he decided to resell the textbooks in question, probably at a fair price. But it seems that he may have stumbled across the concept of free enterprise, entrepreneurship and be your own boss. Because, well, if selling one book at 3000% profit is good, selling two or three hundred is better.

From the article: He then resold them [the textbooks] on eBay. According to evidence presented at trial and cited in a decision last summer by a federal appeals court, Mr. Kirtsaeng made from $900,000 to $1.2-million from the sales, suggesting that he was not merely reselling his own textbooks but was running a business.

I guess this college business really does pay off. Naturally the players involved in this can't have someone like Kirtsaeng just making money. They want what is rightfully theirs - all the money and ten years of payments on restitution.

The court system agreed with the players (the publisher) and Kirtsaeng appealed. Now it's headed to the USSC.

See?

I note that the textbooks were printed and sold overseas, brought to the United States and resold in competition with the publisher's product, which was also printed overseas before being brought back to the US to be sold.

I would think part of the cost for the US sold textbooks was shipping from overseas.

Just another example of the fleecing of college students via text book prices.

Here's another article that relates to this story. It's not looking good for us consumers...
http://tinyurl.com/OmegavsCostco

This case is just in time for Kindle.

We're in for a lot more of this kind of commercial dispute in the future. When we travel overseas, I am always surprised at the bizarre consumer price differences in assorted categories of stuff. I often stock up on things I like in other countries and then I don't have to buy "comparables" here for a few years.

The TV/film industry, publishing, and the arts have had geographical control over their sales for a long time -- not to mention automakers! They even agree on different hardware standards so products can't easily be used across continents. The internet is really disruptive of old, protected business models. Interesting times ahead.

I knew about this crap years ago.

Found a textbook for Owens that I could get from the UK, from Amazon.co.uk, for less (including shipping) than I could from even Amazon.COM. Same freaking book except they probably spelled "color" and "neighbor" with the letter U.

Before that, it was the whole DVD Jon/DeCSS controversy that helped point it out, that one could go buy a DVD outside the USA/Canada region, that was the exact same movie (except perhaps in PAL or SECAM format or with some additional language tracks or subtitles), for much less than one paid in the USA, AND NOT BE ABLE TO LEGALLY PLAY IT IN THE USA because the damn thing was "region locked" to play only on DVD players (and software) made for specific regions of the USA. So you could legally go to the UK, buy a set of Doctor Who DVDs, and bring them back to the USA and be unable to play them.

Might as well close up Ukazoo, Gamestop, and all the rest of the stores with secondhand/used goods after this. Goodbye Goodwill!

This case isn't as bad as some make it out to be. This is not for all goods, just goods originally purchased at retail overseas. So if you buy something here in the US, you can resell it with no problems. eBay is concerned not because people are selling used stuff but because they have foreign sellers doing what Kitsaeng did.

Sorry MrsArcher but you are wrong.

http://articles.marketwatch.com/2012-10-04/finance/34240922_1_copyright-iphone-john-wiley-sons

So basically the entire contents of Walmart outside the food section is now illegal to sell, because it's all MADE IN CHINA.

OH SHIT.

Can't resell your books and DVDs and video games.

Can't resell your cell phone, TV, DVD player, and pretty much all your computer equipment.

Can't resell most of your appliances.

Can't resell your car.

Can't resell any guns not made in the USA! TAKE THAT GUN NUTS!

Can't even resell the shirt off your back!

And the remaining manufacturing will have a strong incentive to run overseas so they can tell you "tough shit, you can't resell the crap you just bought!"

Bend over, America! We're about to get fucked up the ass with a big fat dildo with "© BIG CORPORATIONS INC. MADE OVERSEAS. RESALE PROHIBITED, PENALTY $500,000 FINE AND 5 YEARS IMPRISONMENT" stamped on it.

Keep in mind that THE COPYRIGHT HOLDERS of anything you own that has been MADE OVERSEAS would have to give you permission to sell it.

This of course means any AMERICAN company that has a copyright on ANYTHING, and makes it overseas, can tell you "sorry, you are not allowed to resell that!".

Picture the following:

3 seconds after the Supreme Court announces that it upholds this nonsense, every Fortune 500 company issuing a statement that anything they make overseas is now prohibited from being re-sold in the USA.

Don't tell me they wouldn't. It's the best goddamn thing EVER for the shareholders, and they are failing in their duty to the shareholders if they didn't immediately issue that statement.

Immediately, Craigslist and eBay shut down.
Used car lots shut down.
Goodwill and Savers close.
Ukazoo Books closes.
Once Upon A Child, gone.
Police descent upon flea markets and yard sales.
ATF and FBI storm every single gun store and show, seizing all firearms and ammo not made in the USA.

Upso closes his doors, as whatever foods he uses that are made outside the USA are suddenly illegal for him to use as ingredients and resell. Not to mention the boxes and containers for to-go probably are as well (I just looked at a box of plastic spoons. Made in China.)

^ OK, let's just check these predictions in a decade or so and talk about it then ;-)

The issue partly exists due to two conflicting parts of US law. There is an unauthorized importation ban on foreign editions purchased abroad, meant to protect, in this case, publishers from having to compete against their own foreign editions. On the other hand, US copyright law contains the first sale doctrine, as mentioned above. This case has been pretty huge in the library world, as libraries use the first sale doctrine to be able to even lend their copies of foreign-published works to their communities. I'm sure there is room for compromise and I believe a number of stakeholders have filed a Friend of the Court brief with some alternatives.

Not gonna happen Coward. Even if the SC rules in favor of Wiley, that would only mean that manufacturers have the option of prohibiting reselling. I would even go a step further and say if Wiley prevails the holding will be a very narrow one, and it would probably only apply to books and hard copies of media (reselling digital copies is pretty much already restricted vis-a-vis a license agreement on purchase).

The situations you outline are not going to happen, here's why.

1. It goes against our basic, natural view of property ownership. When you own property, you can decide to do whatever you want with it. This is the way it always has been, and always will be. It's the only way stuff is made.

2. For one to continue control over property held by another, an ongoing business relationship is required via contract (Examples: leased cars, leased equipment, licensed software). The Supremes would have to do away with a huge tenant of contract law as well here (privity of contract), to imply the presence of a contract between the purchaser and the manufacturer of an object through a reseller (store, website, vendor, etc.). This would severely hinder business transactions and have a devastating effect on our economy and other economies. Such an opinion would be anti-business. Not gonna happen in an arguably free and business friendly country.

3. Consumer and institutional boycotts would open up a huge market for any manufacturer who doesn't prohibit reselling. Someone would fill this niche, become very successful at it, and the others would have to fall in line to survive.

4. It would be too burdensome for the manufacturers to control sales of lower end items, say under $1000. Apple sells iPods by the millions. Are they really going to track you down with your IP address and send each and every person a form letter threatening suit for listing their old iPod on eBay? No, this would cost them a lot more than it would be worth, and it would alienate consumers from repeat purchases (see number 3).

5. The lines between copyrightable material and non-copyrightable material are too blurry. Copyright protects expressive content, not functional. Where is the expressive content in a crowbar, for example? How about a plain tee shirt or a wheelbarrow? To enforce a copyright in anything, the copyright must be registered. Do you think that manufacturers of basic items are going to spend their resources registering copyrights in the shape of a spoon or every other item they manufacture so that they can haul you into court to prevent you from reselling it? Where is the copyright in a food product? Mass produced food at it's most basic level does not contain any expressive content. The packaging it comes in surely is, but the food itself no way. Under your doomsday scenario, you couldn't resell your Aunt Jemima or Coca-Cola bottles (disregarding points 3 and 4), but feel free to sell whatever is inside them, because that can't be protected by a copyright.

So those are my first thoughts on this case, do you want to tone down the sensationalism a bit now?

Wouldn't be the first time they decided something against common sense the requirement to purchase healthcare insurance comes to mind.

Here we go...

Th books are filled with laws that have unintended consequences, I just read an article in the AARP flyer, an elderly couple added their daughter to their bank accounts sot hat if they ever became incapacitated she would be able to direct their funds as needed. Their daughter died and they got hit with a tax bill for several thousand dollars, under Pennsylvania law a third of the money in the accounts was considered to be their daughters and they were hit with a 4.5% inheritance tax. None of the money in the accounts was their daughters and she had never even been in their bank. A simple power of attorney would have prevented that but no one told the elderly couple, and the banks were not required to do so. 6 other states tax inheritance Indiana, Iowa, Kentucky, Maryland and New Jersey, of them 4 exempt parents from the tax, Iowa, Kentucky, Maryland and New Jersey.
That's just an example of laws that don't take common sense into play.

1) Who says common sense has any place in law or court rulings?

2) Bullshit. You're confusing/co-mingling intellectual property law with contract law. Hell, let me point out that if you sign up for the Do-Not-Call list, that means companies can't cold-call you for business without an "existing business relationship". But the minute I shop at S-Mart, S-Mart has an "existing business relationship" with me and can start calling me at home to sell crap to me. And that also applies if I buy ACME products from S-Mart, soon as ACME finds out (by e.g. my sending in the warranty card), ACME gets to phone me up.

Also, if you dig into the issue, one is supposed to have the right to make a copy of a computer program, music on CD, etc. However, those industries say no, and implemented copy protection methods, and then got Congress to enact the DMCA to fuck us all on that. So right now, enshrined in copyright law, is the ability to make a copy of such things, but if you break the copy protection mechanism, you get fined half a million bucks and sent to don't-bend-over prison for 5 years. Meanwhile, the RIAA, MPAA, etc. already insist that they can control what you do with their products.

I won't even get into the "by purchasing this product you agree to the license terms that you can't even read that are inside the box" issue, let alone the one-sided "you agree that we can change this agreement at any time" clause.

If SCOTUS upholds this, it's not anti-business except for the secondhand/resale/importer industry. It'll be manna from heaven for every overseas manufacturer, because they will have more muscle in their terms... now the CDs that the RIAA already claims you can't legally make a backup copy of will certainly be something they sue over on Day 1.

3) Consumer boycotts? Any manufacturer that doesn't prohibit reselling? Hah. Any manufacturer that doesn't prohibit reselling will be shooting themselves in the foot unless they make the shittiest products ever, because after the initial demand peaks, the entire secondhand market will be full of their goods. So there will less demand for new products from that manufacturer (aka why should I buy new Brand X when I can get it on Craigslist). So unless they make shit that falls apart, there won't be as much demand. If they tell you you can't resell, that when it breaks, you can either try to repair it or trash it, oh hey, you have to buy NEW goods every time. Authorizing resale is gonna be bad for the shareholders.

4) They don't HAVE to send the seller a form letter. They can just send the form letter to eBay instead. After a few thousand form letters, eBay just concludes that prohibiting people from listing iPods on eBay is easier and cheaper. Hell, it won't even take that, it could just take 1 press release or legal notice stating that all products Company X made overseas are now prohibited from resale. In fact this is basically what Wiley is doing with this lawsuit. "You bought the books overseas, you resold them, you violated our copyright even though you never ever made a copy of any part of the book, give us tons of money, because we are now retroactively asserting that you can't do that to any of our products made overseas."

Hollywood already has no problem firing off DMCA notices to every website under the sun whenever they think someone might be violating their copyright, and of course there's exactly zero penalty for filing a false DMCA claim (there is a perjury clause if you are not the copyright holder or authorized to act on their behalf, that's about it).

5) http://blog.seattlepi.com/timothymccormack/2011/04/21/the-u-s-supreme-court-rules-against-costco-%E2%80%93-a-decision-that-threatens-the-american-consumer/

What's the expressive content of the watch? This happened because Omega put a happy little copyrighted globe logo on the back of the watch! http://en.wikipedia.org/wiki/Omega_S.A._v._Costco_Wholesale_Corp.

So the crowbar gets stamped with a logo, ditto the t-shirt and the wheelbarrow, also they copyright the text on the frigging labels.

To enforce copyright, it must be registered?

Ahem.

http://www.copyright.gov/help/faq/faq-general.html#register

Do I have to register with your office to be protected?
No. In general, registration is voluntary. Copyright exists from the moment the work is created. You will have to register, however, if you wish to bring a lawsuit for infringement of a U.S. work. See Circular 1, Copyright Basics, section “Copyright Registration.”

We're not talking about works made in the USA here, so it doesn't have to be registered in the USA. So it depends on the laws of China or wherever else, on top of automatic copyright by international agreements.

Manufacturers won't have to copyright the shape of their spoon, they just stamp their logo on it (see above case Omega v. Costco), boom! done! Copyright in food product is the same thing, not to mention the food protectionism that says only XYZ cheese can be called XYZ cheese and XYZ wine can be called XYZ wine based on where it's produced. http://en.wikipedia.org/wiki/Geographical_indications_and_traditional_specialities_%28EU%29

Excuse me for a moment...

::grabs bottle of Faygo
::notes copyright notice on the bottle

ASSUMING that they can't prohibit me from reselling the contents of the bottle, into what non-copyrighted container am I to place the contents for resale?

Don't forget, you can copyright DNA too. Gonna be fun when Monsanto tries to restrict resale of their genetically modified grains. OH WAIT THAT HAS ALREADY HAPPENED!

This is America, I can tell you right the hell now that since we already have precedent with the Omega v. Costco case, that every damn business that's beholden to shareholders and manufactures overseas will be all over this so they can have more control of the market. Are you seriously telling me that there's not some manager or lawyer at Coca-Cola and PepsiCo already writing up memos and plans for closing all the bottling plants in the USA and building new across the border in Canada and Mexico? Because the first thing that'll happen is that every mom and pop (heh!) store or taco truck won't legally be allowed to go to Costco or Sam's Club or Kroger and buy cases of Coke and Pepsi for resale! They can't sell you the bottle, minimum, do you think they'll pour it into a cup for you? So now they have to get a lawyer and sign a contract to resell Coke OR Pepsi (you can bet there will be the mandatory exclusivity clause in the contract).

Now if you want to continue that the contents can't have copyright but the package can, well, here comes the day when the 10 pound sack of flour has a license agreement attached stating that by purchasing the package, you agree to not resell the contents in any way. You can't purchase the contents without the package, and the license for the package prohibits you from reselling the contents. This is already legal.

Sensationalist? Maybe. Alarmist? DEFINITELY. I'll even grant you that I'm being absurd, but IT IS NOT OUT OF THE REALM OF POSSIBILITY that what I claim will come to pass.

I'm unconcerned. Kim Dotcom will diversify and provide a solution for resale of non-digital goods. Then he'll get shutdown by the goobermint, only to bounce back with another solution. The tech geeks are smarter than politicians. We'll have a Pirate Bay-like version of ebay. It may not solve the entire problem, and it could be too scary for many people, but it will suffice. And it could give the USPS a bit of business.

"Who says common sense has any place in law or court rulings?"

Bad laws are reversed all the time on the basis of common sense. Examples: prohibition, ownership of human beings, anti-miscegenation laws

"you're confusing/co-mingling intellectual property law with contract law."

They exist simultaneously. You can't pick one over the other. Selling personal information to a third party is a lot different from a third party telling you that you have given them your rights. Contract is the vehicle for all commercial transactions. If you mess with contract law, you are going to piss off whole industries that rely on/are based on the prior meaning.

"If SCOTUS upholds this, it's not anti-business except for the secondhand/resale/importer industry."

Are you trying to tell me that manufacturers won't go after other manufacturers? Why would they waste their time on the little fish when they can get a big one for just as much effort? For the sake of this hypo, let's assume that your logo resale situation becomes a reality. Lumber stamped with the manufacturer's logo is purchased by a furniture factory and by end consumers. Who would you go after for copyright violations if you are trying to twist an arm in a negotiation? You go after the furniture factory because of the volume. You could say the same about many short shelf life products that have to be made/processed here by other manufacturers. That is how this would be bad for many businesses.

Your hypo does not benefit all businesses/corporate overlords. This means that those businesses team up and lobby to prevent this kind of thing from happening, and the net result is little to no change. Do you really think that all domestic manufacturing is just going to bend over and take it from international manufacturers? They will find non-restrictive supply streams and/or have the law changed. Many businesses make a lot of money by gouging when they have a monopoly, but many, many more make their money by moving product, especially consumables.

"Any manufacturer that doesn't prohibit reselling will be shooting themselves in the foot unless they make the shittiest products ever, because after the initial demand peaks, the entire secondhand market will be full of their goods."

I didn't realize that second hand markets can snuff out whole industries. A lot of people never even shop second hand. My hypothetical manufacturer would only be playing by the rules of today. Why would I ever want a used microwave or a microwave I couldn't legally resell when I could buy a nice, clean new one with a warranty that I can sell once it gets beat up and scratched? Some people buy new stuff because they, you know, want new stuff. It would only take one manufacturer to beat your doomsday scenario. Despite your grim view of business men as evildoers who are always trying to shaft the consumer, there are many people out there who build their businesses by pleasing their customers and doing a better job than their competition.

"They can just send the form letter to eBay instead."

eBay wants to sell used goods. They make a lot of money doing so. If you think they are just going to roll over and die you are underestimating them. They will protect their own interests as strongly as those evil manufacturers want to screw over consumers.

I am familiar with the Omega v. Costco case. As you may notice, it is manufacturer versus retailer, not manufacturer versus consumer. See my above point about big fish versus little fish.

"To enforce copyright, it must be registered?"

Enforcement is done through a lawsuit for infringement. My point is made. The copyright cannot be enforced unless it is registered. Yes, it exists, but you can't sue unless it is registered.

"so they can have more control of the market"

It doesn't work that way. Which is Pepsi and Coca-Cola more interested in: selling more soda or pissing off their whole distribution chain and customers? Only one of these options results in greater sales, and thus greater profits for those evil shareholders.

"into what non-copyrighted container am I to place the contents for resale"

Do you think Faygo designed and copyrighted that bottle? No. They bought it from a bottle manufacturer who has been using the exact same molds to make the exact same bottles for years and years. That copyright notice is for the label not the bottle.

"plans for closing all the bottling plants in the USA"

Why would they do that? They are going to ship heavy liquid freight 500 miles inland when it would be cheaper to just bottle near your market? There is a reason there are many local bottlers, it costs a lot to ship liquids. I can hear the
conversation in the board room now: "Let's triple our transportation costs, double our infrastructure, double our fleet, and cause delays in the supply chain so we can sell less soda because we can restrict how it is used! We are really going to gouge those consumers now! Isn't it great how evil and greedy we are? Now one will ever think to compete with us once the consumers realize we're screwing them!"

"when the 10 pound sack of flour has a license agreement attached stating that by purchasing the package, you agree to not resell the contents in any way"

This is where the privity of contract issue comes into play. No court is going to enforce a license for raw materials that is implied through a secondary sale. It just doesn't work that way and would shake contract and property law as we know it to their cores. Are little Johnny and Sue supposed to buy their school lunch directly from Monsanto for $47.50 in your hypothetical world?

Yeah, you are being absurd and sensationalizing the issue. Your hypothetical is way more far fetched than all the right wing conspiracy theories you rail on all the time. Take a deep breath and realize that not every corporation is not trying to screw you, some want to provide you with a good or service at a good exchange for your dollar. I loathe corporate personhood just as much as any good liberal/leftist/progressive, but they are still made up of people who can do good.