Elizabeth Barrette (ysabetwordsmith) wrote,
Elizabeth Barrette
ysabetwordsmith

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Ownership in the Supreme Court

Today the Supreme Court is hearing a case on whether people have the right to resell things they have purchased.

You've been owned

As far as I'm concerned, if I don't own it after paying for it, I don't want to pay for it.  I'll make it myself, find some other workaround, or do without it if at all possible.  The shift toward rental-like purchasing agreements in some fields, like software, has killed a majority of my interest in them and minimized my participation.  In other fields, like ebooks, it contributes to an overall reluctance to get involved in the first place.

Resale is a vital part of the economy.  It gives people an emergency way to raise some money by selling off stuff, and a way to clear out junk they no longer need while making a little extra cash.  It discourages folks from just throwing away things they're done with.  It makes all kinds of small businesses possible.  I don't want to lose that.

As a person involved in making books, I also want to avoid pissing off my customers and making life more difficult for them.  You bought one of my books?  Yippee!  You're done with it?  By all means, take it to a used bookstore, buy yourself a different book, and leave mine on the shelf for someone else to discover.  You think I deserve a piece of the action?  Stuff a buck in my tip jar, write a review of the book, recommend my writing to a friend, etc.  You think my writing sucks and want me to starve?  It's a free country, go read something else.  The last thing I want to do is screw up that process.

Really, this has all the makings of an unfeasible law.  What it would try to stop is too widespread and finicky.  Most people own so much stuff, they won't be able to track what they have the right to resell and what they don't.  So they'll generalize in one direction or the other.  If they decide not to resell anything, that'll kill off a lot of small businesses and make life much harder for poor people who rely on resale because they can't afford new things.  If they decide to resell whatever they want, then there are millions of people breaking the law, which helps nobody but the lawyers.  And if a legal system is enacting truly impractical laws -- of the "Never give an order that you know won't be obeyed" type -- then you know there's a serious problem underlying the whole system.  Setting up that kind of mess is destructive to society as a whole.
Tags: activism, economics, news, politics
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  • 23 comments
Either you're misinformed or deliberately misrepresenting the particulars of this case.
A Thai-born man studying at a US school realized he could buy his textbooks much cheaper in his home country. He began importing large quantities of books and reselling them on eBay. Other people began doing the same, leading publisher John Wiley to bring a copyright suit to stop this. Last year, an appeals court sided with John Wiley.

These books were not purchased for personal individual use,
but specificaly for resale.
I still hold the position that if you buy something, IT IS YOURS. I do not want the court -- especially this court with its corporatist leanings -- to mess around with that fundamental premise.
There is a vast difference between yard sales and retail sales.
If you buy a book and wish to resell it, certainly you may,
and the court's decision in this case will have no bearing on that sort of thing.
If you buy a crate of books and sell them on ebay,
that's an entirely different matter.

Some similar situtations that might clear things up-
One, cigarettes purchased on tribal lands are exempt from taxes.
Cigarettes purchased on tribal lands and resold beyond tribal lands
are NOT exempt from taxes.

Two, sewing patterns (and most fabrics) are copyrighted and licensed
for personal use. I can make a garment and resell it
without violating those licenses;
I cannot make garments for the purpose of selling them
without violating that license.

Three, I don't know of anywhere in the US where you cannot legally
sell your car... however, there are very few places in the US
where you can purchase and sell more than a very small number of cars
in a year without a license of some sort.
(Realizing now that this became a rather long reply. The TL;DR version is that the examples you gave are not valid analogies as none of them are First Sale Doctrine cases)

If the court rules that the first sale doctrine does not apply on items of foreign origin (what is being argued by the publishers) then yes, our right to resell items will be at risk. Do you know which things you own were manufactured wholly in the US and which weren't? And for items that are not a single piece, what happens if they are mixed source (say the text block of a book was printed overseas, but the covers were printed in the US)? Further, can you prove it?

If you purchase cigarettes on tribal lands where they are not taxed, and then resell them in a nearby city not on tribal lands... That has nothing to do with this case. When the local city, county, or state takes you to court they will not utter one word about the first sale doctrine. And if you base your defense on the first sale doctrine they'll laugh all they way to your guilty verdict. That is because you will be prosecuted for tax evasion.

If you buy a sewing pattern, and make multiple sets of clothing based on them to sell... You are doing something completely different from this case. To make it the same you would need to be purchasing multiple copies of the patterns and then selling the patterns not clothes made from the patterns. What the publishers are arguing here is that if you buy even a single pattern in India, or Mexico, or Canada, never even open the packaging it came in, and decide to sell it in the US they should be allowed to deny you the right to sell it because it is of foreign origin.

Your third example with the car again misses the point of this case. When the city comes after you for selling several cars they will never once utter a word about the first sale doctrine. And as with the cigarette example above if you try to base your defense on it they will once again cheerfully laugh as you fight your way to defeat. Because the city or state will would be going after you for failure to obtain a business license and failure to collect the taxes on the sales. And, if you do get the license and pay the taxes the city/state/county won't be upset with you.

To make the car example fit you would have to have to purchase outside the US then resell in the US. This would be complicated, but the complication would be due to import taxes, differences in emissions requirements in other countries, etc. Not the first sale doctrine.

What the publishers are arguing here isn't about business licenses, or taxes. The publishers are arguing that if it originated outside the US then you should have no right to resell it.

Now, for an example that is similar to this case. There used to be a store nearby that specialized in classic, foreign, and hard to find sodas. They had Australian root beers, Japanese Remune, and the one this example is about: bottled Dr. Pepper from Texas made with cane sugar instead of corn syrup. Was Arizona outside that bottler's sales region? Yes. Did the Dr Pepper Snapple Group sue the store for daring to sell a soda that was intended for sale in a region outside Arizona? No.

What happened is that the Dr Pepper Snapple Group went to the bottler and said, "so many people are selling this, in such quantities, outside your contractual sales region that we are forced to believe that you are knowingly shipping outside your region." They then sued the bottler and took over the company.

Note they didn't sue the store in Arizona, they sued they bottler in Texas. Note they didn't argue over the first sale doctrine, they sued over breach of contract. That is because under the first sale doctrine the store had every right to sell it once it bought it.

The publishers here aren't claiming a breech of contract on the students part. And they aren't arguing before the US Supreme Court that whoever sold the books in India broke a contract (they might well have a completely separate case in India, assuming they have contracts with the store not to sell outside a set region). What they are arguing here is that the first sale doctrine should only apply to products that originated in the US.
yeah, my comparisons were far from exact, I'll grant you...
I agree wholeheartedly. The way people have lost access to ebooks they've paid for disgusts me. The way digital media can be not just retroactively deleted but censored scares me. I love digital media, but sometimes hard copies are best. Besides, I love exploring second hand bookstores and finding things I'd probably never have thought to read if only browsing online.
ebooks are an entirely different matter, BTW...
I doubt if my books would have sold any better as ebooks,
but I'm glad I never found out.
I have a professioral friend on the East Coast who made this statement when I posted about this on Facebook, "I think the case will almost have to consider purchasing to use versus purchasing to resell, as the original case was brought against an individual who was buying overseas purposefully to resell here. It should be interesting, and I'm certainly glad it came up now (after this election, who knows what kind of justices will be appointed in the next 4 years)."

I mislike any judicial ruling that re-defines ownership of purchases.
Thank you for being aware of this very important distinction.
This case has nothing to do with yard sales, thrift shops, or used book stores.
Nothing at all.
It never hurts to watch what sort of legislation is being considered. I very much dislike the whole "Big Brother", "we know what's better for you than you do" sort of mind-set. In that way, I'm very much a Libertarian no matter how Liberal my politics may be.
Well, it will only not threaten yard sales, thrift shops, or used book stores if the ruling is very careful to only apply to items you purchased on a commercial basis for resale.

If they give the ruling the publishers want, that the doctrine does not apply if the item in question is of foreign origin, then yes, yes it will threaten used bookstores, yard sales, and thrift shops. As all of them would require that you first show that the item you want to sell is not of foreign origin.

Now in an ideal world, "Yes, but they'd never go after those because they are all beneath the companies notice and besides it would be bad PR to sue a charity shop or the grandmother who was holding the yard sale into bankruptcy," would be a valid response. However, particularly when talking about publishers and media companies in general... They haven't seemed to be worried about bad PR over lawsuits in quite some time.

Can you certify that no part of that paperback you want to sell the used bookstore was manufactured outside the US? Considering how much printing is done outside the US, there's a good chance most of the books you've purchased in recent years wouldn't fall under the First Sale Doctrine anymore.
Where copyright issues are concerned, big companies most certainly will go after little guys. Just ask the day-cares that got sued for having (unlicensed) Disney images on their walls. I don't see any reason that this sort of thing would work differently, if the ruling goes the wrong way.
1) The exact effect of the law will depend on how it is worded and interpreted.

2) Based on examples of other laws in recent years, there is a trend toward large corporations attacking small businesses and individuals, and pressuring or outright bribing the legal system to support that.

Consider that the original complaint is about someone doing the basic premise of merchanting: buy low where goods are easily obtained, sell high where they are less available and in demand. But it's an individual, so a corporation is whining. I don't really have much sympathy for corporations after all the harm they've done to world economies and the public domain and individuals' rights.

3) Therefore, I will treat this case as a credible threat unless it manifests in a way that explicitly forbids attacking individuals and small businesses.

Re: Okay...

lilfluff

8 years ago

Re: Okay...

msstacy13

8 years ago

Re: Okay...

starcat_jewel

8 years ago

Re: Okay...

ysabetwordsmith

8 years ago

Re: Okay...

msstacy13

8 years ago

msstacy13

8 years ago

Considering that corporations are entitled to free speech,
and that individuals give up the right to remain silent by remaining silent,
I will admit that anything,
however absurd,
is possible in a supreme court ruling,
and that the hysteria surrounding this case
may not be groundless after all.

my_partner_doug

8 years ago

msstacy13

8 years ago

Hear, hear on that one! It'll just add to the problems we've already got as a 'use it once and chuck it away society'.

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