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How an EBay Bookseller Defeated a Publishing Giant at the Supreme Court

111 points by gergles 12y ago

georgeecollins 12y ago
I enjoyed this article, but it bothered me that he disclosed that he wrote an amicus brief at the very end of four pages. I love Ars Technica. Please improve your journalism standards by making authors disclose their bias at the front of an article.
- verisimilidude 12y ago
  Not just at the front, but maybe on every separate page too.
- hellbanner 12y ago
  Please email the author or editor to encourage them on this. They may not read the post here at HN.
- WorldWideWayne 12y ago
  I'm trying to understand why the bias would be a cause for concern in this case. What consequence could it have on the reading of an article that is tag-lined as "[One Side] is a rebel without a pause..." which seems to indicate some bias immediately to me. Is there any person who can write without bias? I don't know anything about journalism, I'm just trying to understand the concern in this case (and in general). To what degree can we really expect reporters to be unbiased? (Another question for you: What examples do we have of completely unbiased reporting?)
msravi 12y ago
So let's see. A company wants to sell its goods to people in the US at a higher price than elsewhere. So they want the people in the US to interpret a law in a way that would put people in the US at a disadvantage compared to the rest of the world. Can anything get more ridiculous than this?
- kszx 12y ago
  Under certain conditions, price discrimination that results in a higher price for US consumers can increase their net utility. Example: HIV medication is sold at much lower prices in Africa. If prices in Africa were increased to the levels currently seen in the US, revenues on the African market would be reduced to approx. zero. If prices in the US were decreased to the levels currently seen in Africa, most R&D efforts would have to be stopped. (This is just a response to the comment. It does not necessarily relate to the article.)
  - visarga 12y ago
    > most R&D efforts would have to be stopped. Most R&D efforts sponsored by private companies. Don't write the whole world off. There are plenty of funds and scientists that don't work for the private sector. Sometimes greed promotes progress, other times it hinders it.
- awjr 12y ago
  It was even more fundamental than that. A foreign manufactured product could have the 'right to re-sale' by the owner effectively revoked. If the ruling had gone the other way, a lot of manufacturing would have moved out of the USA as the manufacturers would have had a lot more control over resale. In summary, as long as it was manufactured legally anywhere in the world then you can damn well do with it what you like after you have bought it :) What is more interesting is his comment on the “You Own Devices Act” (YODA). In the Internet of Things age, you may own the physical device but the licence to the software running on the device could be argued, is not transferrable. YODA enforces first sale rights to such devices making the software 'licence' transferable as part of the sale.
  - throwawaykf05 12y ago
    > If the ruling had gone the other way, a lot of manufacturing would have moved out of the USA as the manufacturers would have had a lot more control over resale. This is a gross overstatement. Most manufacturing does not involve copyright and so this ruling would have no bearing on that at all. The simplest way I can put this from my non-lawyer understanding is, "copyright law does not trump first sale doctrine".
rtpg 12y ago
This is a wonderful write-up of the case.Slightly OT but I do think it's worth listening to oral arguments for the Supreme Court. This case's: http://www.oyez.org/cases/2010-2019/2012/2012_11_697 http://www.oyez.org/cases/2010-2019/2012/2012_11_697 A case's oral arguments are an hour long, and are good for getting an idea of what are the legal implications of a specific case. I try to listen at least to those when trying to decide how I feel about a ruling. Legal implications in the future play a big part in how cases end up being ruled, even if it seems like the "bad guys" win for a specific situation. The unanimous ruling against buffer zones is one example of this : http://www.oyez.org/cases/2010-2019/2013/2013_12_1168 http://www.oyez.org/cases/2010-2019/2013/2013_12_1168 Kyllo V. US (Does using a thermal imaging device on your house consist of a search?) also has a lot of conversation that, when taken out of context, make Justices seem unaware of technical advances. But in context, you can see that these lines of questioning are more about pushing the reasoning to its limits : http://www.oyez.org/cases/2000-2009/2000/2000_99_8508 http://www.oyez.org/cases/2000-2009/2000/2000_99_8508
mark-r 12y ago
My prediction: a bill to restore discriminatory pricing will be passed before the next congress is out. They'll probably insert it into YODA so they can act like they're doing us a favor while they screw us.
paulhauggis 12y ago
"a textbook priced at $50 overseas might cost $100 in the US." It might be $50, but it also contains less content/problem sets. Some of the cheap books published in countries like India have as little as 15-20% of the content than the same US edition contains. This will only hurt those countries. Publishers will just stop producing International editions and you will have the same, high priced edition, world-wide..which will price many of those people out of the market completely.
- nkurz 12y ago
  You present a false dichotomy. I'm dubious that at any point going forward students, learners, and academics in third world countries will have less access to up-to-date information than they do now as a result of this ruling. Even if we assume that publishers stop producing separate International editions, there is no reason to assume they will price them identically in all regions. More likely, they will price them in a way that they think will maximize their profits. If this price is judged by the international audience to be too high, the market will respond with increased piracy. Eventually, some other publishers will enter the market with a reincarnation of the "International edition" lured by the siren song of potential profit. In the alternative (http://en.wikipedia.org/wiki/Alternative_pleading http://en.wikipedia.org/wiki/Alternative_pleading), if the International editions truly contain less content than the standard edition (15-20% of the content), and hence less value, perhaps the international price is simply fair value here in the US as well? And if so, why should sale at this price (plus profit for the importer) be prohibited? I find it more likely that the captive nature of the US audience (required textbook of a specified edition) allows the US edition to be priced at a premium beyond that which the information content itself would justify.
- whyenot 12y ago
  If they charge too much student will just start using pirated books. This is already happening; there are several sites out there offering free pdf downloads of textbooks.
- NilayK 12y ago
  I have to disagree with that. While I'm not saying this might be true for every book out there, but I completed most of my bachelor's and my master's engineering degree by buying low priced edition from India and SE Asia and I used to verify and compare with US editions and never once did I find any major differences in context or additional problem sets. The quality of paper wasn't as good, but the price difference was huge and well worth the effort for me to be able to afford them.

111 points by gergles 12y ago

I enjoyed this article, but it bothered me that he disclosed that he wrote an amicus brief at the very end of four pages. I love Ars Technica. Please improve your journalism standards by making authors disclose their bias at the front of an article.

verisimilidude 12y ago
Not just at the front, but maybe on every separate page too.
hellbanner 12y ago
Please email the author or editor to encourage them on this. They may not read the post here at HN.
WorldWideWayne 12y ago
I'm trying to understand why the bias would be a cause for concern in this case. What consequence could it have on the reading of an article that is tag-lined as "[One Side] is a rebel without a pause..." which seems to indicate some bias immediately to me. Is there any person who can write without bias? I don't know anything about journalism, I'm just trying to understand the concern in this case (and in general). To what degree can we really expect reporters to be unbiased? (Another question for you: What examples do we have of completely unbiased reporting?)

msravi 12y ago

So let's see. A company wants to sell its goods to people in the US at a higher price than elsewhere. So they want the people in the US to interpret a law in a way that would put people in the US at a disadvantage compared to the rest of the world. Can anything get more ridiculous than this?

kszx 12y ago
Under certain conditions, price discrimination that results in a higher price for US consumers can increase their net utility. Example: HIV medication is sold at much lower prices in Africa. If prices in Africa were increased to the levels currently seen in the US, revenues on the African market would be reduced to approx. zero. If prices in the US were decreased to the levels currently seen in Africa, most R&D efforts would have to be stopped. (This is just a response to the comment. It does not necessarily relate to the article.)
- visarga 12y ago
  > most R&D efforts would have to be stopped. Most R&D efforts sponsored by private companies. Don't write the whole world off. There are plenty of funds and scientists that don't work for the private sector. Sometimes greed promotes progress, other times it hinders it.
awjr 12y ago
It was even more fundamental than that. A foreign manufactured product could have the 'right to re-sale' by the owner effectively revoked. If the ruling had gone the other way, a lot of manufacturing would have moved out of the USA as the manufacturers would have had a lot more control over resale. In summary, as long as it was manufactured legally anywhere in the world then you can damn well do with it what you like after you have bought it :) What is more interesting is his comment on the “You Own Devices Act” (YODA). In the Internet of Things age, you may own the physical device but the licence to the software running on the device could be argued, is not transferrable. YODA enforces first sale rights to such devices making the software 'licence' transferable as part of the sale.
- throwawaykf05 12y ago
  > If the ruling had gone the other way, a lot of manufacturing would have moved out of the USA as the manufacturers would have had a lot more control over resale. This is a gross overstatement. Most manufacturing does not involve copyright and so this ruling would have no bearing on that at all. The simplest way I can put this from my non-lawyer understanding is, "copyright law does not trump first sale doctrine".

rtpg 12y ago

This is a wonderful write-up of the case.Slightly OT but I do think it's worth listening to oral arguments for the Supreme Court. This case's: http://www.oyez.org/cases/2010-2019/2012/2012_11_697 http://www.oyez.org/cases/2010-2019/2012/2012_11_697 A case's oral arguments are an hour long, and are good for getting an idea of what are the legal implications of a specific case. I try to listen at least to those when trying to decide how I feel about a ruling. Legal implications in the future play a big part in how cases end up being ruled, even if it seems like the "bad guys" win for a specific situation. The unanimous ruling against buffer zones is one example of this : http://www.oyez.org/cases/2010-2019/2013/2013_12_1168 http://www.oyez.org/cases/2010-2019/2013/2013_12_1168 Kyllo V. US (Does using a thermal imaging device on your house consist of a search?) also has a lot of conversation that, when taken out of context, make Justices seem unaware of technical advances. But in context, you can see that these lines of questioning are more about pushing the reasoning to its limits : http://www.oyez.org/cases/2000-2009/2000/2000_99_8508 http://www.oyez.org/cases/2000-2009/2000/2000_99_8508

mark-r 12y ago

My prediction: a bill to restore discriminatory pricing will be passed before the next congress is out. They'll probably insert it into YODA so they can act like they're doing us a favor while they screw us.

paulhauggis 12y ago

"a textbook priced at $50 overseas might cost $100 in the US." It might be $50, but it also contains less content/problem sets. Some of the cheap books published in countries like India have as little as 15-20% of the content than the same US edition contains. This will only hurt those countries. Publishers will just stop producing International editions and you will have the same, high priced edition, world-wide..which will price many of those people out of the market completely.

nkurz 12y ago
You present a false dichotomy. I'm dubious that at any point going forward students, learners, and academics in third world countries will have less access to up-to-date information than they do now as a result of this ruling. Even if we assume that publishers stop producing separate International editions, there is no reason to assume they will price them identically in all regions. More likely, they will price them in a way that they think will maximize their profits. If this price is judged by the international audience to be too high, the market will respond with increased piracy. Eventually, some other publishers will enter the market with a reincarnation of the "International edition" lured by the siren song of potential profit. In the alternative (http://en.wikipedia.org/wiki/Alternative_pleading http://en.wikipedia.org/wiki/Alternative_pleading), if the International editions truly contain less content than the standard edition (15-20% of the content), and hence less value, perhaps the international price is simply fair value here in the US as well? And if so, why should sale at this price (plus profit for the importer) be prohibited? I find it more likely that the captive nature of the US audience (required textbook of a specified edition) allows the US edition to be priced at a premium beyond that which the information content itself would justify.
whyenot 12y ago
If they charge too much student will just start using pirated books. This is already happening; there are several sites out there offering free pdf downloads of textbooks.
NilayK 12y ago
I have to disagree with that. While I'm not saying this might be true for every book out there, but I completed most of my bachelor's and my master's engineering degree by buying low priced edition from India and SE Asia and I used to verify and compare with US editions and never once did I find any major differences in context or additional problem sets. The quality of paper wasn't as good, but the price difference was huge and well worth the effort for me to be able to afford them.