ENTRIES TAGGED "first sale doctrine"
Publishers react to Kirtsaeng ruling, School of Data Journalism returns to festival, and a look at publishers' struggles to remain relevant.
Publishers express disappointment in SCOTUS “first sale” ruling
Headline news this week was the U.S. Supreme Court’s ruling in favor of the student textbook seller in Kirtsaeng v. John Wiley & Sons, Inc., in which the court upheld the “first sale” doctrine in the case of copies of copyrighted material lawfully made outside the U.S. Jeff John Roberts reported the gist of the ruling at PaidContent:
“Writing for the majority, Justice Stephen Breyer rejected John Wiley’s argument that the phrase ‘lawfully made under this act’ implied a geographic limitation. He also cited the concerns of library associations, used-book dealers, technology companies, consumer-goods retailers, and museums — all of which had urged the court to reject the restricted notion of ‘first sale.'”
Andrew Albanese rounded up reactions to the ruling in a post at Publishers Weekly. Wiley president and CEO Stephen M. Smith said, “It is a loss for the U.S. economy, and students and authors in the U.S. and around the world.” Read more…
Attorney Dana Newman on the implications of the Supreme Court ruling in Kirtsaeng v. John Wiley & Sons, Inc.
The U.S. Supreme Court ruled in Kirtsaeng dba Bluechristine99 v. John Wiley & Sons, Inc. yesterday, upholding the “first sale” doctrine in the case of copies of copyrighted materials lawfully made outside the United States. O’Reilly GM and publisher Joe Wikert (@jwikert) quoted from the majority decision in a post about his surprise at SCOTUS’ decision:
“Putting section numbers to the side, we ask whether the ‘first sale’ doctrine applies to protect a buyer or other lawful owner of a copy (of a copyrighted work) lawfully manufactured abroad. Can that buyer bring that copy into the United States (and sell it or give it away) without obtaining permission to do so from the copyright owner? Can, for example, someone who purchases, say at a used bookstore, a book printed abroad subsequently resell it without the copyright owner’s permission?
“In our view, the answers to these questions are, yes. We hold that the ‘first sale’ doctrine applies to copies of a copyrighted work lawfully made abroad.
I reached out to transactional and intellectual property attorney Dana Newman (@DanaNewman) to find out what the ruling means in the short term and what broader implications the decision might hold. Read more…
Amazon's used digital marketplace patent, a data-for-content exchange experiment, and Baratunde Thurston says there's hope for publishing yet.
Amazon prepares to enter the used digital goods resale fray
The headline news this week was Amazon being awarded a US patent for a “secondary market for digital objects,” which according to the patent abstract, include “e-books, audio, video, computer applications, etc.” — so, pretty much anything.
Todd Bishop reports at GeekWire that “[t]he patent, originally filed in 2009 and granted on Jan. 29, covers transferring digital goods among users, setting limits on transfers and usage, charging an associated fee, and other elements of a marketplace for ‘used’ digital goods.” He also notes Amazon’s approach of limiting the number of transfers of used objects to “maintain scarcity.”
Justices hear first sale doctrine arguments, DRM frustrations reach the mainstream, what the Penguin-Random House merger means.
Here are a few stories from the publishing space that caught my attention this week.
“First sale” doctrine arguments begin
The US Supreme Court began hearing oral arguments on Monday in Kirtsaeng d/b/a Bluechristine99 v. John Wiley & Sons Inc. This isn’t a sexy case, but it’s a very important one. The case, which I’ve covered here previously, involves textbooks that a student purchased in Thailand and resold in the US. David Kravets reports at Wired:
“The case tests the so-called ‘first sale’ doctrine, which generally allows the purchaser of copyrighted works to re-sell or use the work without the copyright holder’s permission. That’s why used bookstores, libraries, GameStop, video rental stores and even eBay are all legal. But how the doctrine applies to foreign-purchased works — the so-called gray market — has been a matter of considerable debate.”
Kravets provides a nice overview of the case, and notes that though it mainly deals with physical goods now, as digital goods (for various reasons) can’t be resold, court rulings will have far-reaching effects into the future when digital goods can be resold — waters companies like ReDigi are testing.
The immediate implications for physical goods resale are important to note. Joe Mullin at Ars Technica writes:
“Without ‘first sale’ doctrine in place, content companies would be allowed to control use of their goods forever. They could withhold permission for resale and possibly even library lending — or they could allow it, but only for an extra fee. It would have the wild effect of actually encouraging copyrighted goods to be manufactured offshore, since that would lead to much further-reaching powers.”
Washington, DC lawyer John Mitchell, who has defended students in cases similar to Kirtsaeng, wrote in an email to Mullin that the stakes in this case are high. Mitchell writes:
“There are millions of people living in poverty or near poverty in this country. They scarcely buy new shoes or new clothes, instead shopping at Goodwill Industries or other establishments catering to their needs. They buy used cars, used phones, and used computers. For the person who always buys new, for whom price is not a big factor, the next ‘point of distribution’ is probably the trash. (And, yes, there is case law supporting the right to take copies intended for the trash, clean them up, and resell them.) ‘First sale’ protects those downstream individuals who will never buy new and who would otherwise be left out.”
Mullin’s in-depth look at the case, the case history and what’s at stake is this week’s recommended read.
Bill Rosenblatt untangles several thorny areas of IP distribution and ownership
Our TOC theme this month is “legal” and I thought it would be interesting to have a conversation with Bill Rosenblatt covering a variety of topics in the legal realm. Bill is a recognized authority on intellectual property in the online world. He’s also an author of the Copyright and Technology blog as well as the founder of GiantSteps Media Technology Strategies.
Key points from the interview include:
- Copyright vs. Creative Commons — As Bill says, “copyright law is a huge mess”, and Creative Commons (CC) is a viable alternative. CC has never fully embraced the commercial content community though. CC also doesn’t really make enforcement of IP ownership any easier.
- Libraries and sales vs. licensing — I feel our industry is overcomplicating the library channel situation but Bill explains how digital content isn’t subject to copyright but rather to whatever licensing terms are being offered. Bill feels libraries are “screwed” unless there’s a change in the law. It doesn’t help that libraries aren’t accustomed to trying to operate like businesses.
- First-sale doctrine — ReDigi is a great example of a company that’s pushing the envelope on sale vs. licensing of content. Bill feels it’s unlikely ReDigi will prevail in the current litigation to resell digital music. (See related TOC article here.)
- Piracy — Bill points out that obscurity is indeed a bigger problem than piracy…until you become famous. He asserts that Lady Gaga doesn’t benefit from piracy but I’m not sure I agree. After all, maybe future paying Gaga fans start off pirating a song or two before they get hooked.
Removing DRM may not save publishing, first sale doctrine goes to the Supreme Court, and Apple wants its day in court.
It may be too late for the removal of DRM to make a difference for publishers, a textbook case heads to the Supreme Court, and Apple heads to court to seek validation.