Re: Re: concern at copyright ruling

I think it is worth noting that the particulars of this case do not represent 
the foreign publisher shipping crates of books to a U.S. bookstore. In this 
case, individuals bought the books in Thailand, and at that point, exhausted 
the publisher's control over distribution. These books were already 
legitimately sold once - the triggering point in the first sale doctrine.

Essentially, Wiley was asking for a block on used books that originated outside 
the U.S. To establish that as part of copyright would have meant sweeping 
changes for how books get resold would be read into copyright law, and that was 
something the court could not countenance. It would mean that if, as a 
traveller, you visited a foreign country and bought a book, you could not pass 
it on to anyone when you returned to the U.S. The difference between that and 
what Kirtsaeng was doing is a difference in scale only.

Note that the ruling only says that publisher's will find it "more difficult to 
charge different prices for the same book in different geographic markets". It 
does not say that it will be impossible, or that it is not allowed. It appears 
to me that this control would have to rest within contract law, not within 
copyright law.

... Chris

(thank you for including the link to the decision - more people should take the 
time to read these before commenting)

On Wed, 20 Mar 2013, josephHarris wrote:

> I'd been following the reasoning in the majority decision without too
> much problem, but that did not last.
> http://www.supremecourt.gov/opinions/12pdf/11-697_d1o2.pdf
>
> "Third, Wiley and the dissent claim that a nongeograph­ical
> interpretation will make it difficult, perhaps impos­sible, for
> publishers (and other copyright holders) to divide foreign and domestic
> markets. We concede that is so. A publisher may find it more difficult
> to charge different prices for the same book in different geographic
> markets. But we do not see how these facts help Wiley, for we can find
> no basic principle of copyright law that suggests that publishers are
> especially entitled to such rights". [p31 of the majority ruling]
>
> I cannot see why there needs to be explicit consent in the Acts, if
> there is control of copies. If control of copies does not include
> control of price is not control lost, or at least weakened?
>
> I am at least on the same page as Justice Ginsberg
>
> "Cite as: 568 U. S. ____ (2013) 33 GINSBURG, J., dissenting 8--184.34 to
> 8--184.35; 2 Goldstein §7.6.1.2(a), at 7:141; 4 Patry §§13:22, 13:44,
> 13:44.10. [JUSTICE GINSBURG, with whom JUSTICE KENNEDY joins, and with
> whom JUSTICE SCALIA joins except as to Parts III and V--B--1, dissenting.]
> "Rather than adopting the very international-exhaustion rule the United
> States has consistently resisted in international-trade negotiations, I
> would adhere to the national-exhaustion framework set by the Copyright
> Act's text and history. Under that regime, codified in §602(a)(1),
> Kirtsaeng's unauthorized importation of the foreign-made textbooks
> involved in this case infringed Wiley's copyrights. I would therefore
> affirm the Second Circuit's judgment." [p33 of the Dissent]
>
> I am personally relieved that the point I immediately picked up here is
> both conceded in the majority ruling and underlined by the dissenting
> opinion. :-)

: chris smith ::::::::::::::::::::::::::::::::::::::::::::::::::
: nihil tam munitum quod non expugnari pecunia possit - cicero :

[Non-text portions of this message have been removed]



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