Rickard Falkvinge: Epic Global Copyright Case Goes to US Supreme Court

Knowledge, Politics
Rickard Falkvinge

The Scary Spectre Of Perpetual IPR

Posted: 31 Oct 2012 10:33 AM PDT

Activism – Wendy Cockcroft:  The nightmare scenario of perpetual copyright approaches. The Supreme Court is hearing Kirtsaeng V Wiley, the case of an entrepreneurial Thai student who purchased his textbooks from his native land and imported them into the United States, taking advantage of the price differential. At issue is the question of whether or not you own what you buy. If Wiley wins outright, goods manufactured abroad could actually enjoy copyright protection indefinitely.

Mathematics graduate Supap Kirtsaeng was frustrated that there was such a massive difference between the prices of the textbooks he needed for his course that he arranged to import them from his native Thailand. Relatives purchased the books and sent them over. Then he realised he could make money doing this so he asked them to send more so he could sell them on eBay, making profits of over a million dollars. Wiley found out and sued.

There is a separate provision of U.S. copyright law that prohibits the importation into the United States, “without the authority of the owner of copyright,” of copies of a work “acquired outside the United States.” – Slate

This is what got Kirtsaeng into trouble. He owned what he bought, via his relatives in Thailand. As soon as they entered the country, Wiley had ownership and Kirtsaeng required a license. The law is unambiguous:

(1) Importation.—Importation into the United States, without the authority of the owner of copyright under this title, of copies or phonorecords of a work that have been acquired outside the United States is an infringement of the exclusive right to distribute copies or phonorecords under section 106, actionable under section 501. – Importation and Exportation, US Copyright Law

But so is First Sale Doctrine, which Kirtsaeng used as his defense:

an individual who knowingly purchases a copy of a copyrighted work from the copyright holder receives the right to sell, display or otherwise dispose of that particular copy, notwithstanding the interests of the copyright owner. – Criminal Resource Manual 1854: Copyright Infringement—First Sale Doctrine

The case hinges on the fact that Kirtsaeng’s relatives bought the books from shops, thus exhausting the copyright entitlement and invoking First Sale Doctrine. Wiley contends that First Sale Doctrine begins and ends at American ports and borders.

In August 2011, the U.S. Court of Appeals for the Second Circuit upheld a lower court’s ruling that anything that was manufactured overseas is not subject to the first-sale principle. Only American-made products or “copies manufactured domestically” were. – Marketwatch

Lower courts have accepted and upheld the publisher’s right to market segmentation, and found Kirtsaeng guilty of copyright violations. The upshot: you don’t own what you buy, you’re only renting it, as Doc Searls warned in February. The implications of a victory for Wiley could impact us all in bizarre new ways. Imagine buying a copy of the newspaper USA Today in Dublin, then taking it on a flight to New York. You get asked by a customs guard on the other end where you bought it and are promptly fined for copyright violations based on the importation law. You couldn’t donate goods bought abroad to a charity shop. You couldn’t sell a used car. You certainly couldn’t sell goods on eBay. Garage or car boot sale? Forget it, unless you apply for and receive a license to display to any policemen or copyright enforcement agents to appear on the day. Now try to imagine the problems faced by museums and art galleries, all because you don’t own the foreign-bought item you possess.

Realising the implications for copyright and IPR law, Deputy Solicitor General Malcolm Stewart was despatched to the court to argue the case and maintain the system as it is, since a win for Wiley would trigger a backlash that could undo the IPR system altogether. His solution?

By tying their decision to a 1909 case called Bobbs-Merrill, the court could allow copyright owners to shut down unauthorized distributors like Kirtsaeng but avoid the more extreme position that Wiley has found itself fighting for, said Stewart. (If Wiley wins outright, goods manufactured abroad could actually enjoy copyright protection indefinitely.) Copyright owners could get some control over imports, without granting them control over all downstream sales. – Ars Technica

If that is accepted, it grants copyright holders control only imports, not downstream sales from within its borders. This is problematic because it still means that the holder of an item that’s within copyright must obtain a license to distribute or sell it if it’s been imported. What happens with orphan works? How do you enforce this? And what will happen to eBay, Craigslist, and platforms like that? Online shopping just became more awkward. Help is at hand, though.

Take action now!

The people at Demand Progress have created a campaign featuring these nifty little balls and chains to display on your website to highlight the absurdity of the copyright situation. A petition is available for US residents to sign at You’ve Been Owned to demand that the President defend the property rights of American citizens. Please take part and share the link liberally on the social media. Don’t let these people get away with it!