EFF is leaving very important details out about at least Kirtsaeng. What's happening in that case is not simply that publishers are trying to claw back rights from US consumers. Supap Kirtsaeng took advantage of discounted pricing that Wiley offered students in poorer countries to arbitrage prices. This trick is called "parallel importation" (or "grey market importation") and it's a legal grey area, especially where copyright is concerned, turning on whether owners exhaust the right to import on first sale.
In short, the defendant in Kirtsaeng is taking advantage of a discount program Wiley never intended to offer that defendant in the first place in order to subvert Wiley's whole pricing scheme. Whether Wiley can use a legal argument about first sale to stop this or not, it seems apparent that Wiley will one way or another prevent that from happening.
Knowing HN, these details probably don't do much to change your view of the case. But you should still want to know them! This is something the EFF used to be good at, but now is quite bad at, and despite the fact that EFF mostly supports causes I agree with, I urge you to direct your donations to ACLU or other civil liberties charities instead.
This article is a quick end-of-year summary of two issues that have been active during the year. The description of what Kirtsaeng was doing was likely omitted for brevity, not as a cover-up. (The person who asked my coworkers to write these end-of-year posts specifically asked for short, broad summaries instead of detailed analysis.)
"Wiley claims 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."
This description appeared on the same EFF blog (Deeplinks) where the item that you're concerned about did.
One of the most important aspects of the Kirtsaeng case that we've tried to get the Supreme Court to appreciate is that the plaintiff's theory would limit first sale in a wide range of situations. (One example is artworks, like paintings or manuscripts, that were produced outside of the U.S. and that were brought to the United States by their legitimate owners, who are not the copyright holders. As discussed elsewhere in this thread, there is also a question of whether publishers intending to sell works in the United States can choose the location of their manufacturing operations to make first sale a dead letter.) So even people who think that parallel importation as practiced by Supap Kirtsaeng is bad or should be restricted by law may have cause to be concerned about the Kirtsaeng case. Those consequences and concerns are the focus of this summary post.
In a global economy, restrictions on parallel importation are destructive and backward.
What happened to "free trade"? I see no difference between buying something in country A and selling it in country B and buying and selling within the borders of country A.
As borders continue to fade away, restrictions on importation will become restrictions on first sale rights. So I really draw no distinction, personally.
The article doesn't really comment on the merits of the case for Kirtsaeng. The EFF isn't trying to convince people to support any position in that case, nor should they, I agree with you that it is definitely a legal grey area.
What the EFF is taking issue with in that case is the potential precedent that could be set depending how the case turns out that could undermine first sale. The only reason EFF is interested in the case is because the legal arguments being used could impact first sale.
What's happening in that case is not simply that publishers are trying to claw back rights from US consumers
True... but that's the part of the case that the EFF is concerned about.
In contrast, in the Capitol case the article very clearly takes a position, and while I'm not familiar with that case I give the EFF the benefit of the doubt and assume they're being truthful.
I too wish that the EFF would be a bit more honest when it comes to such issues. I'm very much against anything that divides up globalization and adds region locks.
"Import rights" are a relic of old company structures. You see them in things like Nikon equipment going for much more money in the US, where Nikon USA is a separate company pretty much out of touch with Nikon Japan. But Nikon deals with it by only allowing servicing in country of purchase: hey, their right to lower customer service if they want. A more nefarious issue is e.g. Microsoft in other countries trying shakedown approaches, saying you licenses bought in one country are not legal in other countries.
But when the details emerge, the EFF looks bad and hurts everyone on their side by misrepresenting.
Be careful donating to the ACLU. I love them to death but I keep getting calls on my house phone (not the one I signed up with, mind you) at 8pm asking to donate.
> This is something the EFF used to be good at, but now is quite bad at, and despite the fact that EFF mostly supports causes I agree with, I urge you to direct your donations to ACLU or other civil liberties charities instead.
I'm not sure if that line of logic actually follows, but a rather important distinction is that many causes the EFF supports (that are publicized) have an impact globally, while the ACLU, well the 'A' in the name already says it, no?
Now I still prefer to support my own local digital civil liberties groups (such as Bits of Freedom, that do great work on explaining tough computer/security/privacy subject to ancient politicians), but if we're going to be urging people to support this and not that, better give to the EFF because what they do is actually useful for more people.
I'm fine with first sale not applying to digital goods, but then you cannot call it buying but must call it renting instead. But of course, if amazon was honest and replaced the 'buy' button on a kindle book with a 'rent' button, people would be outraged at the price.
If i cannot leave something to my son in my will, it was never mine to begin with. You can't inherit kindle books, so it's obvious that you don't buy them either. There's no such thing as "buying a license", legally speaking that's called "renting".
I hope the publishers realize that they must tread lightly here. Even by the ridiculously low standards of music and movies, books are reaaally easy to pirate. The DRM is a joke and most of them comprise fewer bytes than a moderately complex webpage.
If we learned one thing from the music industry over the last 15 years, it's that the internet gives your customers the power to destroy you if you treat them with contempt for long enough.
I love to read and I happily buy many Kindle books at $9.99+ a pop on Amazon. I want to live in a world where authors can make a living by writing. But bogus restrictions on book sharing, complete lack of a resale market, etc. are already starting to rub me the wrong way. At some point, if pushed too far, I'm not going to feel much remorse about flouting the system.
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.
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.
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_.
The argument is actually about what you own. Is it the media or a license for one person to play it?
Most people I know are fed up with such word games and just plain old steal the bits and bytes (well duplicate them - whether or not that is stealing is another question). The media industries are just hanging themselves even more by the day. I don't see any tears being shed.
Exactly the same way as other media. In fact sometimes worse.
I have tried to sell a few bits of software via eBay (used windows XP pro retail box) which have been uninstalled or replaced with partner action pack licenses. After a day or so, I get an email from eBay saying that the item has been withdrawn due to a complaint from the manufacturer.
This is what they want.
I'm in the UK btw and am concerned this may become an international issue.
At what point do we realize that these people are simply trying to extract rent from our electronic communications, and we should circumvent them at any opportunity, and punish the politicians who are bought off to give them power?
The copyright owners have a bigger problem than what they may consider unauthorized copying. Drawing attention to compositions in sound and vision has become so much more difficult because it has become so much easier to distribute them. The scarcity has gone and so has the price. Quite a bit of the value has now decisively shifted to compositions in touch, smell, and taste, which cannot be distributed digitally.
[+] [-] tptacek|13 years ago|reply
In short, the defendant in Kirtsaeng is taking advantage of a discount program Wiley never intended to offer that defendant in the first place in order to subvert Wiley's whole pricing scheme. Whether Wiley can use a legal argument about first sale to stop this or not, it seems apparent that Wiley will one way or another prevent that from happening.
Knowing HN, these details probably don't do much to change your view of the case. But you should still want to know them! This is something the EFF used to be good at, but now is quite bad at, and despite the fact that EFF mostly supports causes I agree with, I urge you to direct your donations to ACLU or other civil liberties charities instead.
[+] [-] schoen|13 years ago|reply
This article is a quick end-of-year summary of two issues that have been active during the year. The description of what Kirtsaeng was doing was likely omitted for brevity, not as a cover-up. (The person who asked my coworkers to write these end-of-year posts specifically asked for short, broad summaries instead of detailed analysis.)
If you follow the link given in the article (https://www.eff.org/deeplinks/2012/10/parade-horribles-supre...), you'll see another article from October by my colleague Parker, where he writes:
"Wiley claims 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."
This description appeared on the same EFF blog (Deeplinks) where the item that you're concerned about did.
One of the most important aspects of the Kirtsaeng case that we've tried to get the Supreme Court to appreciate is that the plaintiff's theory would limit first sale in a wide range of situations. (One example is artworks, like paintings or manuscripts, that were produced outside of the U.S. and that were brought to the United States by their legitimate owners, who are not the copyright holders. As discussed elsewhere in this thread, there is also a question of whether publishers intending to sell works in the United States can choose the location of their manufacturing operations to make first sale a dead letter.) So even people who think that parallel importation as practiced by Supap Kirtsaeng is bad or should be restricted by law may have cause to be concerned about the Kirtsaeng case. Those consequences and concerns are the focus of this summary post.
[+] [-] glesica|13 years ago|reply
What happened to "free trade"? I see no difference between buying something in country A and selling it in country B and buying and selling within the borders of country A.
As borders continue to fade away, restrictions on importation will become restrictions on first sale rights. So I really draw no distinction, personally.
[+] [-] antoko|13 years ago|reply
What the EFF is taking issue with in that case is the potential precedent that could be set depending how the case turns out that could undermine first sale. The only reason EFF is interested in the case is because the legal arguments being used could impact first sale.
What's happening in that case is not simply that publishers are trying to claw back rights from US consumers
True... but that's the part of the case that the EFF is concerned about.
In contrast, in the Capitol case the article very clearly takes a position, and while I'm not familiar with that case I give the EFF the benefit of the doubt and assume they're being truthful.
[+] [-] MichaelGG|13 years ago|reply
"Import rights" are a relic of old company structures. You see them in things like Nikon equipment going for much more money in the US, where Nikon USA is a separate company pretty much out of touch with Nikon Japan. But Nikon deals with it by only allowing servicing in country of purchase: hey, their right to lower customer service if they want. A more nefarious issue is e.g. Microsoft in other countries trying shakedown approaches, saying you licenses bought in one country are not legal in other countries.
But when the details emerge, the EFF looks bad and hurts everyone on their side by misrepresenting.
[+] [-] ceol|13 years ago|reply
[+] [-] tripzilch|13 years ago|reply
I'm not sure if that line of logic actually follows, but a rather important distinction is that many causes the EFF supports (that are publicized) have an impact globally, while the ACLU, well the 'A' in the name already says it, no?
Now I still prefer to support my own local digital civil liberties groups (such as Bits of Freedom, that do great work on explaining tough computer/security/privacy subject to ancient politicians), but if we're going to be urging people to support this and not that, better give to the EFF because what they do is actually useful for more people.
[+] [-] Joeri|13 years ago|reply
If i cannot leave something to my son in my will, it was never mine to begin with. You can't inherit kindle books, so it's obvious that you don't buy them either. There's no such thing as "buying a license", legally speaking that's called "renting".
[+] [-] hyperbovine|13 years ago|reply
If we learned one thing from the music industry over the last 15 years, it's that the internet gives your customers the power to destroy you if you treat them with contempt for long enough.
I love to read and I happily buy many Kindle books at $9.99+ a pop on Amazon. I want to live in a world where authors can make a living by writing. But bogus restrictions on book sharing, complete lack of a resale market, etc. are already starting to rub me the wrong way. At some point, if pushed too far, I'm not going to feel much remorse about flouting the system.
[+] [-] mtgx|13 years ago|reply
[+] [-] monochromatic|13 years ago|reply
[+] [-] nedwin|13 years ago|reply
Is this your legal opinion as a lawyer?
[+] [-] jellicle|13 years ago|reply
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.
[+] [-] anigbrowl|13 years ago|reply
[+] [-] MichaelGG|13 years ago|reply
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_.
[+] [-] meaty|13 years ago|reply
Most people I know are fed up with such word games and just plain old steal the bits and bytes (well duplicate them - whether or not that is stealing is another question). The media industries are just hanging themselves even more by the day. I don't see any tears being shed.
[+] [-] ryan_s|13 years ago|reply
[+] [-] meaty|13 years ago|reply
I have tried to sell a few bits of software via eBay (used windows XP pro retail box) which have been uninstalled or replaced with partner action pack licenses. After a day or so, I get an email from eBay saying that the item has been withdrawn due to a complaint from the manufacturer.
This is what they want.
I'm in the UK btw and am concerned this may become an international issue.
[+] [-] justincormack|13 years ago|reply
[+] [-] woah|13 years ago|reply
[+] [-] dredmorbius|13 years ago|reply
When we're talking about designed-obsolete college texts selling for hundreds of dollars for century-old wisdom .... Several lines have been crossed.
[+] [-] eriksank|13 years ago|reply
[+] [-] unknown|13 years ago|reply
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