Re: Re: concern at copyright ruling

Chris,

Thank you for that considered comment. While I think you are right about 
contract law being very much at the heart of regional licencing - in 
fact all licencing, there must be something worth the effort to sign a 
contract over! I checked back on what brought Wiley to court in the 
first place. Th problem is that it was close to crates of books. The 
student ran a business that was of $1.2m; I suspect this is profit, not 
turnover, but haven't had time to check fully.

The report I read says the Thai student, while in the US, advertised the 
books, and had his family in Thailand drop ship them to the buyer. The 
money difference was such that all the costs left a profit at a price 
below that i n the US. In effect the student never owned them, and was 
actually running a business for profit with effectively new books, in 
defiance of a copyright restriction [which must, in my opinion, be a 
right if the US Constitutional copyright entitlement is truly exclusive].

The majority assumed this was a matter of profit motive [in any case a 
requirement under company law], but it is likely something else. WIPO 
has long been encouraging getting western education books to poorer 
countries at sepcial concessions - mostly price, of course. This would 
only be possible with regional licencing, the very thing the justices 
have weakened. Judge Chin, in the Google Book Agreement case, was more 
sensitive to international implications and consequences; part of the 
reason the case is unresolved nearly five years in.

I had early thought Wiley not sharp enough, and someone else pointed out 
to me that Wiley's insistence on going for first sales doctrine was 
daft, which gave shape to my suspicion. Of course the dissent view, that 
the ruling was contrary to US trade negotiations, may well mean a quick 
statute will be brought in to strengthen the geographical issue. The 
whole IP rights field must have geographical control as part of its 
exclusivity for many reasons, and I cannot see a groundswell of lobbying 
being long delayed.

One point presented to me elsewhere I fully appreciate; that there was 
danger that the opposite ruling would have meant that all goods were 
treated similarly to drugs in the US, and there was then no ability to 
buy abroad at lower prices, or second hand for something imported. A 
paradise scenario for unscrupulous businesses.

That this ruling happened at the same time as the speech by Maria 
Pallante 
http://www.law.columbia.edu/null/download?&exclusive=filemgr.download&file_id=612486 
, not one I see as going forward, may be an unfortunate co-incidence.

Joseph

On 21/03/2013 13:40, Chris wrote:
>
>
> 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]



------------------------------------

------------------------------------------------------
Post a message:   ebook-community [[at]] *
Unsubscribe:      ebook-community-unsubscribe [[at]] *
Switch to digest: ebook-community-digest [[at]] *
Switch to normal: ebook-community-normal [[at]] *
Put mail on hold: ebook-community-nomail [[at]] *
Administrator:    ebook-community-owner [[at]] *

(* == yahoogroups.com)
-------------------------------------------------------Yahoo! Groups Links

<*> To visit your group on the web, go to:
    http://groups.yahoo.com/group/ebook-community/

<*> Your email settings:
    Individual Email | Traditional

<*> To change settings online go to:
    http://groups.yahoo.com/group/ebook-community/join
    (Yahoo! ID required)

<*> To change settings via email:
    [email protected] 
    ebook-community-fullfeatured-hHKSG33TihhbjbujkaE4pw@public.gmane.org

<*> To unsubscribe from this group, send an email to:
    ebook-community-unsubscribe-hHKSG33TihhbjbujkaE4pw@public.gmane.org

<*> Your use of Yahoo! Groups is subject to:
    http://docs.yahoo.com/info/terms/