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August 22, 2011


I was all ho-hum until I followed the link and let the EFF spell it out for me:

The ruling has potentially far-reaching implications. In theory, it could give copyright owners full control to regulate or even prohibit resale of their works so long as the copies of those works are manufactured abroad. Imagine if Apple tried to argue that you couldn’t resell your iPhone that was manufactured in China, or if Toyota tried to argue that you couldn’t resell your Prius that was manufactured in Japan. If a product incorporates some copyrightable component—likely true for most electronics and many new cars, which include copyrightable software or firmware, though even a copyrighted logo will suffice (more on that below)—you might only be able to resell it, if at all, on the copyright owner’s terms.

It's absolutely clear that US intellectual property law is an utter mess. Copyrights, patents, you name it, the whole thing is incoherent.

Maybe if Congress could quit playing political games it could bring some sense to this. But I'm not optimistic.

A little more discussion here and here

When I was in Madison for a summer about 15 years, I remember a story about three teenage boys got into trouble (possibly arrested, I can't remember the precise details), because they had purchased some pants at a branch of one store in town where they were on sale, and then took them to another branch where they weren't on sale and made money when they asked for a refund.

Don't mean to be dumping on anyone here, but things like this make me quite doubtful when we talk about widget innovation

"or if Toyota tried to argue that you couldn’t resell your Prius"

On the other hand, this would put much of the used car grift out of business, collapse the market for over-sized American flags, and defund a good 9% of the rump 27% who want Obama dead.

buying in one place, getting a refund in another is a bit different. Refund != resell.

buying in one place, getting a refund in another is ...



Hello all - hope everyone is doing well!

This is a pretty hot area in copyright law, and there a few quick things to note:

1 - It's total bullshit. The law is being used to essentially limit trade under the guise of copyright. The Costco case is especially egregious b/c it was about WATCHES, which are otherwise completely unprotected.

2 - It's potentially a big chill to e-commerce. For instance, if you buy a book on eBay from a British reseller, you could potentially be violating the law depending on where the book was manufactured.

Fortunately, IP wasn't and isn't on the bar exam, so I never had to study it. Seems to me the copyright laws should only apply to reproducing the copyright holder's work, not purchasing from the holder or the holder's licensee, which protects the holder's interest by capturing the profit off of the sale, but having done so, title to the single copyrighted work passes, allowing a resale. What about used book stores?

If this seems unusually dense for a lawyer, I'm a tort/contract guy.

lj, please stop making my head hurt.

IIRC the first sale doctrine was judicially derived in response to patent law. Patent law allows the holder to restrict the use and sale of a patent or patented article, but the courts decided that, obviously, you couldn't sell someone a patented article and then tell them they can't use it or sell it again.

Sometime in the last 20 years or so, again IIRC, patent holders were given the right to restrict the "importation" of their product, and thus its sale in the US if purchased abroad. This was a gift to pharma companies who could be assured that if they sold Pill X in Canada for $5 a pop, but sold the same pill in the U.S. for $50 a pop, there wouldn't be any cross-border arbitrage (each sale being profitable of course because the marginal pill production cost was far less than $5.*)

It sounds like this notion has now made its way into copyright law, which is traditionally supposed to be the weaker form of IP protection.

*there might be an exception to this rule specifically in the case of Canada, but my recollection of it is lost.

All of which is to say that barring you from re-selling a product you purchased overseas in the U.S. is not unknown in IP law, and while there seems to be hints around the edges here in the post and comments that this sort of approach might be applied to products manufactured abroad but purchased in the U.S., it's not clear to me that that's the case (I'll cop to not having read the legal decisions).

McTex, I would think that used book stores would now need to track who sold them every used book they have. That way, if it turns out that the book was manufactured overseas, they could point back at the original purchaser. Or would their required due diligence be to determine (somehow!) where the original purchase was made?

What a can of worms to have opened! I really hope that the Supreme Court gets the opportunity to smack down the Second Circuit. (Hey, there's nothing that says they only reverse 9th Circuit decisions.)

Might as well just rename the US Federal Courts "The Magic Kingdom."

I am usually to blogging and i actually admire your content.

[note: after cutting out the email address and url, I'm leaving this up so as not to make the following comments incomprehensible]

All of my posts are copyrighted.

By a professional copywriter?

Bootleg copywriters. They charge less.

I, too, am usual to blogging, but I can't say I've ever seen a link spammer with a bait-nym as repellent as "white spots on skin". The contemporary internet tradition is more along the lines of "ugg4cheap".

All of my posts are copyrighted.

Let us know if there is a secondary market for your comments.

Smiley face, smiley face.

Secondary? Sheesh. We're still trying to get the primary one off the ground. All the marketing data has come back stamped "tertiary". So we're jumping right into options, futures, swaps, and CDO's.

If you want distribution rights, now's the time to get in.

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