4 ms·

Bravo, EFF. The Kirtsaeng case is quite important because, if lost, it would create a loophole to destroy "first sale" in the U.S. entirely. Just cease manufa

Bravo, EFF. The Kirtsaeng case is quite important because, if lost, it would create a loophole to destroy "first sale" in the U.S. entirely. Just cease manufacturing any sort of copyright material in the U.S.; move ALL production to Mexico or China. If the Kirtsaeng case is lost, reselling any of those works would become illegal, eliminating used book stores and similar enterprises entirely. And indeed, this could apply to any product with writing on it or code in it - massive incentives to move all production of such things out of the U.S., since then you would be able to prevent ANY secondary sales of your product. VERY important case, with massive implications for the future structure of U.S. society and the economy.

MichaelGG 14y ago
Are you sure about that? I understood it to be ruling that disallows you from buying abroad and importing. So if they moved production to Mexico, but then they imported and sold it to you, it would not matter - you'd still have first sale. What you couldn't do is buy it in Mexico and bring it in yourself and sell it. I'm against any erosion of first sale and believe all "grey market" stuff should be legal. Companies should find other ways to differentiate products rather than the meatspace equivalent of "region locks". But let's be honest: this case isn't suddenly going to destroy first sale _within the US_.
- anigbrowl 14y ago
  Region locks are not desired by copyright holders, but by the distributors in those regions who want exclusivity within their retail territory. Suppose you make a product and discover that someone in, say, Indonesia is faking and selling a counterfeit version. Are you equipped to sue them? Probably not unless you're a large global firm, so it makes more sense for you to sell your product through a distributor in that territory. Likewise, pricing is different because incomes and economies are different. You charge the price the market will bear in each territory. None of this prevents individuals from buying something for themselves overseas and taking it home to use. But it does prevent bulk importation, which parties to a distribution agreement are contractually required to combat.
  - knightni 14y ago
    Region locks are desired by copyright holders too, as it makes it easier to maximise incomes per region based on their ability to pay.
    - anigbrowl 14y ago
      Well yes, that's why you enter into a distribution agreement with a wholesaler in that market if you can rather than sitting back and letting your stuff be republished for nothing.
- AnthonyMouse 14y ago
  >I understood it to be ruling that disallows you from buying abroad and importing. So if they moved production to Mexico, but then they imported and sold it to you, it would not matter - you'd still have first sale. The key word in that sentence is "they" -- who is "they"? Here's the problem: The copyright holder manufactures the product abroad and sells it abroad to a nominally unaffiliated distributor who then imports it into the United States. In theory the distributor is doing what would not be allowed -- importing the foreign product without a license -- but the copyright holder gets to decide whether or not to sue them. And they don't sue them, this one unofficial distributor with whom they have an unspoken agreement. They only sue you when you go to resell the used product, claiming it was never sold by the copyright holder in the United States. Maybe you could make some claim that the distributor had a de facto license based on the fact that the copyright holder implicitly allowed the importing to continue, but good luck proving it when they claim it was unsanctioned (and meanwhile they have a token official U.S. reseller with near-zero sales volume who sells at 5X the price, and a list of other unsanctioned importers who they've sued to shut down).
- schoen 14y ago
  You should have a look at the gap between the Ninth Circuit's holding in Omega v. CostCo and the Second Circuit's holding here. :-) In footnote 44, the Second Circuit agrees that its own "decision may allow a copyright holder to completely control the resale of its product in the United States by producing its goods abroad and then immediately importing them for initial distribution" but says that this "does not affect or alter our interpretation of the Copyright Act".
anigbrowl 14y ago
Wrong. If it's sold in the US, first sale applies. That's why it's called the 'first sale' doctrine, not the 'first manufacture' doctrine. I already have books that were printed in Mexico and China, and you probably do too.
- belorn 14y ago
  Given the practice of tax dodging, how many items are really sold in the US by US webstores? Are you sure that all those amazon books are sold "in the US" and not from Ireland or some small island somewhere?
  - rmc 14y ago
    As someone from Ireland, I'll tell you amazon, despite having s large EU office here and their AWS European region here, do not actually sell much here. There is no amazon.ie, you must buy from the UK amazon.co.uk or the US amazon.com. If you have a kindle, you must use the US amazon.com kindle store. If you have a customer service complaint about your kindle you have to eventually find a US customer service number. Not to negate your general point though.
  - justincormack 14y ago
    In the US they are still sold onshore at present. Although the state they are sold from is an issue. This could change though of course.
  - anigbrowl 14y ago
    If the transaction is initiated by a US consumer inside the US, it's considered to be a US sale. If you dig into the case law on this, you'll find that the concept of first sale doctrine is perfectly well understood by the legal establishment and is not about to shrivel up and blow away. There's an excellent (albeit technical) introduction to these issues in the 9th circuit's ruling on Omega S.A. v. Costco Wholesale Corp.. Read up also on some of the journal articles from the Wiki page: http://en.wikipedia.org/wiki/Omega_S.A._v._Costco_Wholesale_Corp http://en.wikipedia.org/wiki/Omega_S.A._v._Costco_Wholesale_.... and if you're really itnerested, dig into the amicus briefs.

MichaelGG 14y ago

Are you sure about that? I understood it to be ruling that disallows you from buying abroad and importing. So if they moved production to Mexico, but then they imported and sold it to you, it would not matter - you'd still have first sale. What you couldn't do is buy it in Mexico and bring it in yourself and sell it. I'm against any erosion of first sale and believe all "grey market" stuff should be legal. Companies should find other ways to differentiate products rather than the meatspace equivalent of "region locks". But let's be honest: this case isn't suddenly going to destroy first sale _within the US_.

anigbrowl 14y ago
Region locks are not desired by copyright holders, but by the distributors in those regions who want exclusivity within their retail territory. Suppose you make a product and discover that someone in, say, Indonesia is faking and selling a counterfeit version. Are you equipped to sue them? Probably not unless you're a large global firm, so it makes more sense for you to sell your product through a distributor in that territory. Likewise, pricing is different because incomes and economies are different. You charge the price the market will bear in each territory. None of this prevents individuals from buying something for themselves overseas and taking it home to use. But it does prevent bulk importation, which parties to a distribution agreement are contractually required to combat.
- knightni 14y ago
  Region locks are desired by copyright holders too, as it makes it easier to maximise incomes per region based on their ability to pay.
  - anigbrowl 14y ago
    Well yes, that's why you enter into a distribution agreement with a wholesaler in that market if you can rather than sitting back and letting your stuff be republished for nothing.
AnthonyMouse 14y ago
>I understood it to be ruling that disallows you from buying abroad and importing. So if they moved production to Mexico, but then they imported and sold it to you, it would not matter - you'd still have first sale. The key word in that sentence is "they" -- who is "they"? Here's the problem: The copyright holder manufactures the product abroad and sells it abroad to a nominally unaffiliated distributor who then imports it into the United States. In theory the distributor is doing what would not be allowed -- importing the foreign product without a license -- but the copyright holder gets to decide whether or not to sue them. And they don't sue them, this one unofficial distributor with whom they have an unspoken agreement. They only sue you when you go to resell the used product, claiming it was never sold by the copyright holder in the United States. Maybe you could make some claim that the distributor had a de facto license based on the fact that the copyright holder implicitly allowed the importing to continue, but good luck proving it when they claim it was unsanctioned (and meanwhile they have a token official U.S. reseller with near-zero sales volume who sells at 5X the price, and a list of other unsanctioned importers who they've sued to shut down).
schoen 14y ago
You should have a look at the gap between the Ninth Circuit's holding in Omega v. CostCo and the Second Circuit's holding here. :-) In footnote 44, the Second Circuit agrees that its own "decision may allow a copyright holder to completely control the resale of its product in the United States by producing its goods abroad and then immediately importing them for initial distribution" but says that this "does not affect or alter our interpretation of the Copyright Act".

anigbrowl 14y ago

Wrong. If it's sold in the US, first sale applies. That's why it's called the 'first sale' doctrine, not the 'first manufacture' doctrine. I already have books that were printed in Mexico and China, and you probably do too.

belorn 14y ago
Given the practice of tax dodging, how many items are really sold in the US by US webstores? Are you sure that all those amazon books are sold "in the US" and not from Ireland or some small island somewhere?
- rmc 14y ago
  As someone from Ireland, I'll tell you amazon, despite having s large EU office here and their AWS European region here, do not actually sell much here. There is no amazon.ie, you must buy from the UK amazon.co.uk or the US amazon.com. If you have a kindle, you must use the US amazon.com kindle store. If you have a customer service complaint about your kindle you have to eventually find a US customer service number. Not to negate your general point though.
- justincormack 14y ago
  In the US they are still sold onshore at present. Although the state they are sold from is an issue. This could change though of course.
- anigbrowl 14y ago
  If the transaction is initiated by a US consumer inside the US, it's considered to be a US sale. If you dig into the case law on this, you'll find that the concept of first sale doctrine is perfectly well understood by the legal establishment and is not about to shrivel up and blow away. There's an excellent (albeit technical) introduction to these issues in the 9th circuit's ruling on Omega S.A. v. Costco Wholesale Corp.. Read up also on some of the journal articles from the Wiki page: http://en.wikipedia.org/wiki/Omega_S.A._v._Costco_Wholesale_Corp http://en.wikipedia.org/wiki/Omega_S.A._v._Costco_Wholesale_.... and if you're really itnerested, dig into the amicus briefs.