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appal_jack

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Gender: Male
Hometown: North Carolina
Member since: Wed Aug 11, 2004, 06:57 PM
Number of posts: 3,813

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Ginsburg, Kennedy & Scalia mega-fail.

The tortured logic they use toward prostrating our whole nation and planet before the gaping maw of corporate power is astounding. One would think that these three justices themselves might be pretzel-shaped after issuing this tortuous dissent. Glad that six others saw fit to preserve academic freedom & the flow of information.

-app

Supreme Court Gets It Right In Kirtsaeng: You Can Resell Things You Bought Abroad Without Infringing

Source: Techdirt, also EFF.

For a few years now, we've been following the Kirtsaeng case, in which a student was sued by publisher John Wiley & Sons for buying cheap (legal) textbooks abroad, and then reselling them in the US for profit. Wiley claimed this was copyright infringement, while the student, Sudap Kirtsaeng, argued that the first sale doctrine applied. First sale gives you the right to resell, say, a book that you legally bought without having to get permission from the copyright holder. Under copyright law, it says that the first sale doctrine applies to any product "legally made under this title." Wiley argued that goods made abroad were not legally made under US law since they were made abroad (even though, obviously, it wanted the rest of copyright law to apply to it once those works came to the US). We were guardedly optimistic after the oral hearings at the Supreme Court, in which the Justices explored the "parade of horribles" that might happen if Wiley won. And while what happens at oral arguments frequently doesn't seem to have any bearing on the eventual situation, in this case, the Supreme Court has ruled in favor of Kirtsaeng, saying that it is silly to interpret the first sale doctrine the way Wiley does, and that there is no evidence that such "geographical restrictions" make sense, or that Congress intended such a result.
In our view, §109(a)’s language, its context, and the common-law history of the “first sale” doctrine, taken together, favor a non-geographical interpretation. We also doubt that Congress would have intended to create the practical copyright-related harms with which a geographical interpretation would threaten ordinary scholarly, artistic, commercial, and consumer activities.... We consequently conclude that Kirtsaeng’s nongeographical reading is the better reading of the Act.
To get technical, the key issue in the dispute was that two different sections of copyright law could be read to conflict. Section 109 defines the First Sale doctrine while Section 602 defines importation of works. Kirtsaeng focused on 109, while Wiley insisted that 602 is more important. The Supreme Court -- by a six to three margin -- side strongly with Kirtsaeng. The majority was written by Justice Breyer, who is consistently good on intellectual property issues, while the dissent was led by Ginsburg, who is consistently bad on copyright issues (Scalia and Kennedy sided with Ginsburg). Thankfully the "good" side won out today.
The language of §109(a) read literally favors Kirtsaeng’s nongeographical interpretation, namely, that “lawfully made under this title” means made “in accordance with” or “in compliance with” the Copyright Act. The language of §109(a) says nothing about geography. The word “under” can mean “n accordance with.” 18 Oxford English Dictionary 950 (2d ed. 1989). See also Black’s Law Dictionary 1525 (6th ed. 1990) (“according to”). And a nongeographical interpretation provides each word of the five-word phrase with a distinct purpose. The first two words of the phrase, “lawfully made,” suggest an effort to distinguish those copies that were made lawfully from those that were not, and the last three words, “under this title,” set forth the standard of “lawful[ness].” Thus, the nongeographical reading is simple, it promotes a traditional copyright objective (combatting piracy), and it makes word-by-word linguistic sense.

The geographical interpretation, however, bristles with linguistic difficulties. It gives the word “lawfully” little, if any, linguistic work to do. (How could a book be unlawfully “made under this title”?) It imports geography into a statutory provision that says nothing explicitly about it. And it is far more complex than may at first appear.

To read the clause geographically, Wiley, like the Second Circuit and the Solicitor General, must first emphasize the word “under.” Indeed, Wiley reads “under this title” to mean “in conformance with the Copyright Act where the Copyright Act is applicable.” Brief for Respondent 15. Wiley must then take a second step, arguing that the Act “is applicable” only in the United States. Ibid. And the Solicitor General must do the same. See Brief for United States 6 (“A copy is ‘lawfully made under this title’ if Title 17 governs the copy’s creation and the copy is made in compliance with Title 17’s requirements”). See also post, at 7 (GINSBURG, J., dissenting) (“under” describes something “governed or regulated by another”).

One difficulty is that neither “under” nor any other word in the phrase means “where.” See, e.g., 18 Oxford English Dictionary, supra, at 947–952 (definition of “under”). It might mean “subject to,” see post, at 6, but as this Court has repeatedly acknowledged, the word evades a uniform, consistent meaning. See Kucana v. Holder, 558 U. S. 233, 245 (2010) (“‘under’ is chameleon”); Ardestani v. INS, 502 U. S. 129, 135 (1991) (“under” has “many dictionary definitions” and “must draw its meaning from its context”).

A far more serious difficulty arises out of the uncertainty and complexity surrounding the second step’s effort to read the necessary geographical limitation into the word “applicable” (or the equivalent). Where, precisely, is the Copyright Act “applicable”? The Act does not instantly protect an American copyright holder from unauthorized piracy taking place abroad. But that fact does not mean the Act is inapplicable to copies made abroad. As a matter of ordinary English, one can say that a statute imposing, say, a tariff upon “any rhododendron grown in Nepal” applies to all Nepalese rhododendrons. And, similarly, one can say that the American Copyright Act is applicable to all pirated copies, including those printed overseas. Indeed, the Act itself makes clear that (in the Solicitor General’s language) foreign-printed pirated copies are “subject to” the Act.
The ruling goes on to lay out historical and logical reasons why first sale should apply. It's a good read. It looks like Breyer relied, in part, on the American Library Association's concern for how a ruling against First Sale would cause serious harm to libraries, which would have to somehow figure out ways to get permission on any book they had that was printed outside the US. He similarly cites concerns of used book dealers and the tech industry that this would get in the way of all sorts of reasonable transactions.
Technology companies tell us that “automobiles, microwaves, calculators, mobile phones, tablets, and personal computers” contain copyrightable software programs or packaging. Many of these items are made abroad with the American copyright holder’s permission and then sold and imported (with that permission) to the United States. A geographical interpretation would prevent the resale of, say, a car, without the permission of the holder of each copyright on each piece of copyrighted automobile software. Yet there is no reason to believe that foreign auto manufacturers regularly obtain this kind of permission from their software component suppliers, and Wiley did not indicate to the contrary when asked. Without that permission a foreign car owner could not sell his or her used car.
Breyer dismisses the idea, presented by Wiley, that because this "parade of horribles" hasn't happened yet, it won't happen in the future if the ruling had gone the other way. The ruling notes that this is still somewhat unsettled law, but that large parts of the economy clearly rely on the first sale doctrine, and upsetting that apple cart could have dramatic impact. It also rejects other spurious arguments, including a favorite of copyright maximalists, that the first sale doctrine on such works prevents copyright holders from doing differential pricing. The court rightfully questions what this has to do with copyright:

Read more: https://www.techdirt.com/articles/20130319/08094922377/supreme-court-gets-it-right-kirtsaeng-you-can-resell-things-you-bought-abroad-without-infringing.shtml



Note, exercpt consists of four paragraphs of Techdirt's article, plus several paragraphs of the SC decision itself, which of course is in the public domain. Also see:

https://www.eff.org/deeplinks/2013/03/you-bought-it-you-own-it-supreme-court-victory-common-sense-and-owners-rights

Where the Electronic Freedom Frontier says:

In a long-anticipated decision, the Supreme Court held today that the first sale doctrine applies to works made outside of the United States. In other words, if you bought it, you own it—no matter where it was manufactured. That's a major victory for consumers, and also libraries, used bookstores, and all kinds of groups that depend on the right to lend or resell the goods they've legally purchased.

This case, Kirtsaeng v. Wiley, specifically concerned the re-sale of textbooks in the U.S. The first sale doctrine, described in section 109 of the U.S. Copyright Act, gives people the right to resell, lend, or give away the works that they’ve bought, even if those works contain copyrighted elements. Textbook publisher Wiley claimed that this doctrine only applies to goods that are manufactured in the U.S., and that the defendant, Supap Kirtsaeng, was infringing its copyright by purchasing books at a reduced rate in his native Thailand and selling them below list price in the States.

In other words, under Wiley's interpretation, copyright owners that are crafty enough to outsource the actual manufacture of their works abroad could control the secondary market for copies of works that were manufactured abroad for the entire copyright term.

The Supreme Court firmly rejected that notion, which it called the “geographical interpretation.” Your right to resell, lend, or give away the works that you buy does not depend on whether you happen to buy them in the US, or in Amsterdam or anywhere else. Rather, it simply depends on whether the copyright owner authorized the manufacture of the copy.


The Obama admin was on the wrong side of this issue. Glad the SC got it right, with Obama appointees Kagan and Sotomayor on the right side of the issue, thankfully.

-app

Dem Pols need to quit the bait & switch.

I'm a registered Democrat and consistent Democratic voter because I believe in equal rights for women & men, for people of all colors & classes, for the GLBT & straight communities alike. I support unions, believe that jobs & economic progress can be entirely compatible with a protected environment, and want to see the social safety net, from earned benefits such as Medicare & Social Security all the way to unemployment and WIC benefits expanded, not shredded. I want civil rights & liberties expanded for people, while reigning-in the power & privilege of corporations.

I do not think that my beliefs are out of the mainstream.

It's a shame to see too many Democratic politicians squander this mandate provided by voters such as myself in a pointless battle over magazine capacities and other hot-button Second Amendment issues. Were I a Coloradan, I would be outraged. At the Federal level, I am outraged at the pointless expenditure of political capital led by Biden, Feinstein, Lautenberg, etc.

I agree with the vast majority of Democrats that violence needs to be addressed at the societal level. Our politicians could show real leadership toward this end by addressing poverty, ending the war on drugs, and reforming the criminal justice system to lock up the truly dangerous and leave everyone else alone. Pissing-on the Second Amendment instead is a second-rate, short-sighted, lazy alternative, taken by 'Democratic' politicians of the lowest caliber.

-app

So he knows when the monarch census happens. So what?

So the entomologist you quote knows when the monarch census happens. So what? I'm not an entomologist by profession, and yet I recall that the population numbers from the winter refuges are released every year about this time. That environmental groups choose to highlight these numbers, especially when they show a long-term and consistent decline, is not evidence of any ill intent.

Methinks your entomologist has an axe to grind.

-app

Yes! Now, let's take the conversation further.

Yes! Now, let's take the conversation further. Senator Warren did exactly the right thing in asking why banks are above the current law. That opens the door for us citizens to ask all our representatives to reconsider the failed War on (some) Drugs entirely.

It's no surprise that with the money to be made from illegal drugs, that banks would get their hands dirty with it. Do I wish that they were treated like common criminals? Maybe for the moment (it is the law after all), but I'd rather see the laws change to comport themselves better with reality and the rights we all (should) have as citizens. Now is way past time to treat addiction as a public health problem, and remove the issue of drugs from the criminal justice system entirely. Tax, regulate, and educate about all substances, much as we do alcohol & tobacco at present. The reduction in harm would be substantial. The elimination of costs that drugs impose on over-full jails and an over-burdened 'justice' system enormous. And the regaining of rights lost by Americans in the name of a mythical 'drug-free' society would be outstanding.

Senator Warren did her part in her role overseeing the banks, and she did it well. Now, let's open the door for more progress, and real equality before better laws in the future.

-app
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