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Supreme Court To Consider First Sale of Imports

kdawson posted more than 4 years ago | from the copyright-because-i-say-so dept.

The Courts 259

Animaether passes along a legal tale that "doesn't involve the kind of cutting-edge issues that copyright lawyers usually grapple with in the digital age [and] sounds like the kind of lawsuit that should have been resolved 200 years ago," yet still "is very much a product of the Internet-driven global economy." "Can copyright owners assert rights over imported goods that have already been sold once? That is the issue before the Supreme Court in Costco Wholesale Corp v. Omega, S.A. (backstory here). What's at stake is the ability of resellers to offer legitimate, non-pirated versions of copyrighted goods, manufactured in foreign nations, to US consumers at prices that undercut those charged by the copyright holders."

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Free market, right? (4, Insightful)

rolfwind (528248) | more than 4 years ago | (#32004344)

What's good for the goose must be good for the gander, no?

Re:Free market, right? (5, Insightful)

Anonymous Coward | more than 4 years ago | (#32004358)

The only free market in America is hookers and blow. Just kidding, there is no free market in America.

Re:Free market, right? (5, Insightful)

countertrolling (1585477) | more than 4 years ago | (#32004564)

Actually you're right. Contraband is the perfect example, the epitome, of the free market. Totally unregulated.

Re:Free market, right? (3, Insightful)

fuzzyfuzzyfungus (1223518) | more than 4 years ago | (#32004616)

Quite the contrary. Black markets often suffer from relatively weak, corrupt, or inconsistent governance(gang warfare isn't going to find its way into the dictionary under "due process" any time soon); but they virtually always have nontrivial regulatory systems.

They tend toward being somewhat decentralized, socially structured, and based on direct violence(rather than centralized, bureaucratic, and based on potential violence); but they are definitely there.

Re:Free market, right? (2, Insightful)

countertrolling (1585477) | more than 4 years ago | (#32004700)

...but they virtually always have nontrivial regulatory systems.

Then a free market truly is nothing more than a neo-liberal's dream. Because there will always be some third party attempting to skim something off the transaction, through tax, regulation, prohibition, etc

Re:Free market, right? (1)

bmwEnthusiast (1384289) | more than 4 years ago | (#32004976)

and since i was 15 i've been paying the same prices...

Re:Free market, right? (1)

tunapez (1161697) | more than 4 years ago | (#32004900)

I realize it's AC, but please, someone mod this +1 Funny, if not +5 Insightful.

Re:Free market, right? (1)

Nadaka (224565) | more than 4 years ago | (#32004930)

Free? Have you seen the prices on hookers and blow recently?

Re:Free market, right? (1)

NicknamesAreStupid (1040118) | more than 4 years ago | (#32004970)

Freedom's just another word for nothing left to sue.

Re:Free market, right? (5, Insightful)

fuzzyfuzzyfungus (1223518) | more than 4 years ago | (#32004426)

Of course not. When a corporation needs cheap labor/materials/lax laws/no taxes, then "Free Trade" is what makes the world go round.

If you wish to engage in a little arbitrage of your own, then "grey market" is about the most polite term. It is Vital to uphold Safety Standards and Preserve Market Stability, after all...

Why does this even need to be discussed? (2, Insightful)

slacker22 (1614751) | more than 4 years ago | (#32004382)

Surely this should be a foregone conclusion

Re:Why does this even need to be discussed? (4, Insightful)

Locke2005 (849178) | more than 4 years ago | (#32004442)

Free market is free market. Once you sell something, you should have zero authority to dictate where it is shipped to and resold (with the exception of munitions, of course). Oh, and we should be able to import prescription drugs at much lower prices from other countries too!

Re:Why does this even need to be discussed? (0, Insightful)

Anonymous Coward | more than 4 years ago | (#32004650)

You do realize that the reason other countries (ie Canada) have lower prices for prescription drugs is because of price controls, right? If you let people import from Canada you are essentially importing their price controls.

Price Controls --> No Research --> No New Drugs

The bulk of health research is conducted in the United States, and the bulk of that is funded by the private sector. Regulate the US Market and its bye bye medical research.

Re:Why does this even need to be discussed? (1, Informative)

Anonymous Coward | more than 4 years ago | (#32004726)

Yea because the only reason that there is medical research is because the US Market is unregulated.

Re:Why does this even need to be discussed? (2, Interesting)

Anonymous Coward | more than 4 years ago | (#32005004)

The GP is actually right. Pharmaceutical price controls in other countries are subsidized by higher prices in the US. If (e.g.) Canadian price controls were to be applied globally, the potential returns for R&D of new drugs would drop dramatically, to the point that many drugs currently in development would be abandoned and much potential new research would never get off the ground.

This is the inconvenient truth that gets lost in the health care debate - one of the reasons that modern health care is so expensive is that all the cheap/easy medical advances are generations behind us. Modern advances are necessarily far more difficult and expensive to develop, and those costs must be borne by somebody if the research is to continue. At the same time, progressive medical advances have made it possible to add years to the end of many people's lives, and have made many previously fatal conditions survivable. Unfortunately, the older a person becomes, the more medical care he needs, and the more likely he is to develop a condition that is now survivable, but only at great expense.

This is why any true health reform must draw a balance between providing treatment and managing costs. At some point, 87 year-old John Smith is going to have to accept that society cannot afford to spend $5 million on cancer treatment to extend his life by another 6 months. Try selling that to the voters, though.

Re:Why does this even need to be discussed? (2, Informative)

Altus (1034) | more than 4 years ago | (#32005188)

This still doesn't justify the US paying crazy drug prices to subsidize the price controlled prices in other countries.

Yes, medical research is expensive but that doesn't mean that we should pay for cheep drugs for Canadians. I'm also not totally convinced that applying the same rules here would actually cause the entire biotech industry to grind to a halt. It would certainly have an impact but the idea that drug companies would just close up all R&D forever is not very believable. Eventually they would have nothing left to sell at any price.

Re:Why does this even need to be discussed? (1, Informative)

Anonymous Coward | more than 4 years ago | (#32004806)

So why should the U.S. be burdened with expensive drug research? There's nothing about us that makes research on drugs special except that we give money away to companies that then charge us because they used our money to find a cure to our sickness. While I might not fault a "Third-world" country for not investing in research, surely a country like Canada has the resources to join in. This should make price controls impractical and actually aide Big Pharma.

Re:Why does this even need to be discussed? (1)

McGiraf (196030) | more than 4 years ago | (#32004922)

and the bulk of that is funded by the private sector tax returns on R&D

Re:Why does this even need to be discussed? (2, Insightful)

Locke2005 (849178) | more than 4 years ago | (#32005028)

If the drug companies couldn't make a profit selling the drugs at that price point in Canada, they wouldn't be selling the drugs in Canada. Ergo, they could still make a profit selling the drugs at that same price point and allowing them to be (re)imported into the US. I fail to see why ALL of the R&D costs should be amortized by soaking US citizens, while every other country gets a free ride.

Re:Why does this even need to be discussed? (2, Insightful)

Kjella (173770) | more than 4 years ago | (#32004734)

Unless I'm mistaken this is at least a violation of the Berne treaty, you can't treat domestic and international copyrights from the signatories differently... maybe we should put them on some sort of copyright watchlist ;)

Re:Why does this even need to be discussed? (1)

ObsessiveMathsFreak (773371) | more than 4 years ago | (#32004944)

Oh, and we should be able to import prescription drugs at much lower prices from other countries too!

That settles it then. Whatever about small fry like video game companies and DVD distributors, there is no way that the US Supreme Court is going to upset the gravy train of something so massive as the pharmaceutical industry. No imports for you!

Re:Why does this even need to be discussed? (4, Interesting)

tomkost (944194) | more than 4 years ago | (#32004462)

Yes, it is a foregone conclusion, but not in the way you probably are thinking. You see, the rights of corporations must be protected at all costs. They can not be restricted by silly concepts like the sovereignty of nations, fair use, personal property rights, or any other fundamental concept of our legal systems. Don't worry, the Supreme Court will help them achieve their profits at any cost. I sure hope I'm wrong, but let's watch and see.

Re:Why does this even need to be discussed? (2, Interesting)

NewWorldDan (899800) | more than 4 years ago | (#32004590)

The problem is that Congress did a lousy job of writing section 602 of the copyright code. It's clear to me that the intent of the law is that this should apply to goods manufactured abroad without the consent of the copyright holder. It calls it a violation of the copyright holder's right to produce and distribute something. Except, of course, that the copyright holder has already exercised that right.

Interestingly enough, if I read it correctly, this doesn't apply to people importing things for their own personal use. So downloading music from a jurisdiction that doesn't recognize US copyrights is completely legit, as long as you don't share it with anyone. :)

Copyright weirdness (4, Insightful)

girlintraining (1395911) | more than 4 years ago | (#32004412)

Well, this was pretty clear 200 years ago: Property was real and tangible. Copyright existed to protect the authors of works from publishers and printing presses using their work without paying for it. Fast forward 200 years and now we have copyright being applied to something that's intangible, can be copied for effectively zero cost, and has been hob-cobbled together to encompass intangible things like phrases, lines of code, even the "likeness" or "appearance" of something is not copyrightable. Given this vast expansion of the definition of copyright (for better or for worse, depending on who you ask), of course there's going to come a day when the tangible thing -- a legitimate CD purchased through legitimate channels could be declared illegal because it's being used incorrectly.

Copyright no longer covers just possession of a thing -- it's now been expanded to include the use of a thing as well, and that latter definition is what's causing most of the problems.

 

Re:Copyright weirdness (2, Informative)

rubycodez (864176) | more than 4 years ago | (#32004470)

wrong, copyright 200 years ago applied to the information, the data, in a book. You could in 1790 copy a book by hand, sell the copy you made,and be in violation of copyright law.

Re:Copyright weirdness (4, Informative)

girlintraining (1395911) | more than 4 years ago | (#32004520)

wrong, copyright 200 years ago applied to the information, the data, in a book. You could in 1790 copy a book by hand, sell the copy you made,and be in violation of copyright law.

Citation needed! And I'll provide. You want the Copyright Act of 1790, which was created to "securing authors the 'sole right and liberty of printing, reprinting, publishing and vending' the copies of their 'maps, charts, and books' for a term of 14 years, with the right to renew for one additional 14 year term should the copyright holder still be alive."

So you could make a handwritten copy for personal use and not be in violation of copyright law. You could also re-sell anything protected by copyright law that you lawfully purchased without any strings. Neither is true today, which is what this case is all about.

Re:Copyright weirdness (1)

ais523 (1172701) | more than 4 years ago | (#32004594)

Wow, 14 plus another 14 is the sanest time limit for copyright law I've heard mentioned in a while (should be plenty of time to make money on whatever you've done...) Also, your sig, despite being a quote from an entirely different context, seems to describe copyright law pretty accurately. (I misread it as being part of your comment to start with...)

Re:Copyright weirdness (1)

jmorris42 (1458) | more than 4 years ago | (#32004638)

> Neither is true today, which is what this case is all about.

Nope, that is exactly what this case is about. You can't go to some third world pesthole, print up a bunch of books and then import them into the US. The rights holder of course can outsource the printing. Every book/CD/DVD/etc offered for sale in the US must have a chain of authority tracable to the author, and only through US connections. Some of the newer treaties get a little more complex but the idea is still the same as a practical matter. You aren't allowed to find the country with the lowest royalty rates, buy a container or two there and bring them to the 1st world and expect to be allowed to sell them.

Re:Copyright weirdness (0)

girlintraining (1395911) | more than 4 years ago | (#32004686)

You can't go to some third world pesthole, print up a bunch of books and then import them into the US. The rights holder of course can outsource the printing

200 years ago, you could. copyright only applied to tangible property produced by a US citizen domestically.

Re:Copyright weirdness (1)

cgenman (325138) | more than 4 years ago | (#32005040)

Why not? Say that virgin records produces 2 batches of records. They're both produced side-by-side in the same factory, with the same proper authorization from the same people. Batch 1 is sold in the US for 15 dollars a copy. Batch 2 is sold in Brazil for 5 dollars a copy.

The chain of authority is completely traceable, and perfectly clean. The only difference is whether or not virgin records earmarked a particular piece for sale in one country or another. And that falls to the interpretation of the law, as to whether or not it is illegal to import a legitimately purchased copyrighted work for non-personal use.

http://www.law.cornell.edu/uscode/uscode17/usc_sec_17_00000602----000-.html [cornell.edu]

Personally I love how the law says it is illegal, then that it isn't, then that if it is isn't legal, it's illegal. I'm sure a lawyer can point to a specific ruling on this point.

Re:Copyright weirdness (1)

BKX (5066) | more than 4 years ago | (#32004706)

You must speak a different language than the rest of us. A handwritten copy would most certainly qualify as "reprinting". Remember that the spirit (intent) of the law is often as important as the actual wording. Take the word "vending" in that excerpt. At first you may think that only copyright holders could sell their own works (or at least control the sale thereof) and that second-hand sales would be prohibited. But you'd be wrong. The doctrine of first sale had existed in commonlaw for many, many years before then and would have colored this law to refer only to the first sale of the work to wholesalers.

Re:Copyright weirdness (1)

rubycodez (864176) | more than 4 years ago | (#32004716)

not so, both still true today but for "exceptions", this court case is about an exception to the general rule, which include imported foreign first sale.

You can make a handwritten copy or photocopy today, as long as for legal use: Libraries have copy machines for that purpose. Try to sell that copy and you're in trouble

Re:Copyright weirdness (0, Troll)

aztektum (170569) | more than 4 years ago | (#32004720)

You could also re-sell anything protected by copyright law that you lawfully purchased without any strings. Neither is true today...

If that is so, how come I was able to resell some books to a used book dealer a few weeks ago? And every time I go out I see one or two stores that deal solely in second hand console games, dvds and audio cds.

Re:Copyright weirdness (1, Insightful)

Anonymous Coward | more than 4 years ago | (#32005078)

The negation of "everything is resellable" is not "nothing is resellable." The fact that there exists something resellable does not mean that everything is resellable.

Re:Copyright weirdness (1)

aztektum (170569) | more than 4 years ago | (#32005184)

I took her statement thusly: At one time you could re-sell anything that you legally obtained even if copyrighted, but today you cannot sell *anything* that is copyrighted even if legally obtained. Since books, DVDs, etc are copyrighted but you can re-sell them, her statement, the way it written seems rather inaccurate to me.

Re:Copyright weirdness (1)

Grishnakh (216268) | more than 4 years ago | (#32004904)

How is his statement wrong? You're not even contradicting it. You're talking about copying and selling something, which is exactly what copyright is about: the right to copy.

What this case about isn't copying at all: it's about buying a legitimate item from the publisher (through its distributor and retailer), then taking it somewhere else and reselling it as second-hand. Normally, publishers don't complain too loudly about this, because there's no profit in buying a CD at Wal-Mart and then driving to your local used CD store and selling it there. However, with global travel, there is profit in buying a perfectly legitimate DVD in China (not one of the counterfeit ones), flying home to the USA, and selling it on Ebay there, since the publisher sets wildly different prices in the two regions.

Basically, the copyright cartel wants to redefine copyright to overturn the right of first sale, which has existed for centuries.

In 1790, if someone was stupid enough to sell a book for 25 cents in Philadelphia and 10 cents in Atlanta, they wouldn't have been able to bring any real legal action against someone who bought up all the books in Atlanta and resold them in Philly for 15 cents; it would have been thrown out of court right away.

Re:Copyright weirdness (1)

Intron (870560) | more than 4 years ago | (#32005180)

What this case about isn't copying at all: it's about buying a legitimate item from the publisher (through its distributor and retailer), then taking it somewhere else and reselling it as second-hand.

Not true. If Costco was calling the watches second-hand I don't think Omega would have a problem with it. They're selling brand new watches. So the question is: Does copyright law allow control of sale and distribution? (yes) and is Costco violating that? (hmmm)

Maybe Costco should claim that all watches are second-hand (also hour and minute-hand).

Re:Copyright weirdness (5, Interesting)

fuzzyfuzzyfungus (1223518) | more than 4 years ago | (#32004510)

It's even nastier than that, in some cases, because some "real and tangible" property is now complex enough to enforce(against all but extremely sophisticated individuals) its own rules about use.

CSS is pitifully weak; but it was perhaps the first demonstration of this concept that gained huge market traction. Thanks to CSS licensing requirements, adding technologically enforced region coding became trivial.

As the cost of computing power continues to fall, and the number of devices that have embedded firmware and/or unique serial numbers continues to increase, there is virtually no area of "real property" over which the DMCA and copyright law will not eventually exert de facto control.

Re:Copyright weirdness (1)

selven (1556643) | more than 4 years ago | (#32005036)

I'm pretty sure the first sale doctrine forbids using legal tricks (like slapping a license agreement onto a book) to prevent resale of a copyrighted work. Not much of a stretch to extend that to technological protections.

Re:Copyright weirdness (0)

Anonymous Coward | more than 4 years ago | (#32005064)

um.. _copy_ right has no bearing on ownership, merely on copying. see, the hint's right there in the name.

Global economy baby ! (5, Insightful)

aepervius (535155) | more than 4 years ago | (#32004414)

You decide to outsource your programmer in bengladore, your sale rep in ireland, your telephonic support in china ? Welllll we decide to buy our game from import from the global market. Too bad they undercut your local monopoly price. Global market baby. You outsource our job, we outsource our buying. Fair is fair.

Re:Global economy baby ! (3, Insightful)

Killer Orca (1373645) | more than 4 years ago | (#32004500)

And here is the answer people, Costco found a way to keep their prices low and still buy products legitimately; but the manufacturer cries foul because of copyright of all things? No, no, It was sold to a U.S. distributor, don't act like you didn't know it wasn't going to be sold in the U.S. and claim First Sale doctrine violation.

Re:Global economy baby ! (1)

Dunx (23729) | more than 4 years ago | (#32004692)

Hence all that lovely region coding - ensuring geographic market segmentation so there will not be a single global market.

I often wonder if Philips and the other CD standard signatories regret not inserting region coding into that first digital media standard.

Re:Global economy baby ! (1)

characterZer0 (138196) | more than 4 years ago | (#32004702)

Fair is not necessarily legal.

How does copyright come into play here? (3, Interesting)

CRCulver (715279) | more than 4 years ago | (#32004424)

I thought I had a decent understanding of the three legal spheres grouped under "Intellectual Property": patents, copyright and trademarks. But I don't understand why copyright is involved in this specific case. Wouldn't Omega's logo stamped on products be something protected as a trademark, not as a copyrighted work?

Re:How does copyright come into play here? (4, Interesting)

Attila Dimedici (1036002) | more than 4 years ago | (#32004546)

If I understand the backstory article correctly, Omega registered a copyright on its logo in order to fall under this exception to the First Sale Doctrine. I believe Costco made a mistake in not challenging the copyright. The Omega logo does not appear to me to be something that is copyrightable. I don't know if they can change their tactics at this point, but if they can, they should. The Omega logo is not distinct from hundreds of other expressions of Omega that have been used for years. When I did a search of "Omega logo" I found a computer company that uses almost exactly the same logo except with the word "Systems" added. Additionally I saw several other similar logos that I did not bother to follow to see what company they were for (but it wasn'tthe watch company).

Re:How does copyright come into play here? (5, Insightful)

pem (1013437) | more than 4 years ago | (#32004554)

The only reason copyright comes into play is because Omega copyrighted this logo for the _specific_ reason of trying to use copyright as a legal market segmentation tool.

If ever there was a rationale for "misuse of copyright", this is it.

Re:How does copyright come into play here? (3, Funny)

poena.dare (306891) | more than 4 years ago | (#32004794)

This is just epic fail for Omega. They should have learned from the much more savvy software publishing industry: don't sell your watches; license them.

Re:How does copyright come into play here? (1)

ObsessiveMathsFreak (773371) | more than 4 years ago | (#32005016)

If ever there was a rationale for "misuse of copyright", this is it.

Copyright is quickly become the big business go-to concept for invalidating constitutions everywhere. Wiretapping, prior restraint, first sale rights, presumption of innocence, parody and satire, academic freedoms, etc, etc. People have rights that are getting in your way? Then get yourself some Copyrights!; Ten times more potent than the average right.

Re:How does copyright come into play here? (2, Informative)

reverseengineer (580922) | more than 4 years ago | (#32004560)

In this case, the stamp on the watch is being considered as "artwork," which falls under copyright. From the FAQ [copyright.gov] on the US Copyright Office page:

Copyright does not protect names, titles, slogans, or short phrases. In some cases, these things may be protected as trademarks. Contact the U.S. Patent & Trademark Office, 800-786-9199, for further information. However, copyright protection may be available for logo artwork that contains sufficient authorship. In some circumstances, an artistic logo may also be protected as a trademark.

Bit by bit towards corporate feudalism (4, Insightful)

unity100 (970058) | more than 4 years ago | (#32004444)

in which you will buy everything, but own nothing ...

Re:Bit by bit towards corporate feudalism (2, Insightful)

Locke2005 (849178) | more than 4 years ago | (#32004966)

I have no problem with that, as long as I'm one of the owners that everybody else is paying a monthly stipend to.

Only one solution to all these problems. (1, Interesting)

Anonymous Coward | more than 4 years ago | (#32004448)

The planet needs a global, multinational currency. That will stop the problems about different prices for each country, problems about manufacturing costs and problems about the purchasing power of everyone. No longer will manufacturing things in China or offering customer support from India be profitable. In return, people will once again have money to spend and the money will flow more freely (both figuratively and literally).

Re:Only one solution to all these problems. (2, Insightful)

fuzzyfuzzyfungus (1223518) | more than 4 years ago | (#32004540)

Highly unlikely that that would make much difference.

There is a class of activity that consists more or less exclusively of making bets about the relative movements of currencies, and there is probably some behavior in "real" markets that is affected by currency movements; but most of this stuff is just about price discrimination, which will be economically rational for sellers as long as there are multiple buyers willing to pay different amounts more than the marginal cost of production.

National borders happen to be one convenient mechanism for price discrimination; but there are many others. The idea that such techniques deserve the protection of law, against the doctrine of first sale, though, is disgusting.

Re:Only one solution to all these problems. (2, Insightful)

Matrix14 (135171) | more than 4 years ago | (#32004850)

This explains why a given item costs the same in Oklahoma and New York City.

Re:Only one solution to all these problems. (1, Insightful)

Locke2005 (849178) | more than 4 years ago | (#32004940)

Wrong, wrong, wrong! The planet already has a global currency, it's called "gold". Ask yourself this: would the disparities in pricing still exist if all contracts were payed in gold? The different prices for each country are driven by marketers trying to charge whatever cost the market will bear, this has little or no connection to currency exchange rates. Manufacturing is cheaper where the labor costs are cheaper; again, this has nothing to do with exchange rates. Also, the Euro is an ongoing experiment in a multinational currency which is about to fail due to being dragged down by Greece.

Like Beanie Babies (0)

Anonymous Coward | more than 4 years ago | (#32004454)

This reminds me of when US taxpayers were forced to foot the bill for taking Beanie Babies from people who legally purchased them, just to protect a pricing scheme. Some free market.

Sorry about the bad link [google.com] .

first sale (1)

sixsixtysix (1110135) | more than 4 years ago | (#32004472)

i'd like to see how first sale doctrine would go with purchased mp3s. or better, ones given away for free. awhile back, amazon gave away like 11 mojo nixon albums. can i sell those (and delete originals) for whatever i want? i mean, if they were cds, i could, so...

encoded message: (-1, Troll)

Anonymous Coward | more than 4 years ago | (#32004474)

this steaming cup of Icy Pee brought to you by the Clowns for Christ

Who cares (2, Funny)

Anonymous Coward | more than 4 years ago | (#32004482)

Easier to steal everything off internets.

Rediculous interpretation of law (4, Insightful)

Locke2005 (849178) | more than 4 years ago | (#32004524)

So, if I live in England, legally buy an Omega watch there, then legally immigrate to the US, it is now a copyright violation to resell that watch on eBay?!? This flies in the face of common sense!

Re:Rediculous interpretation of law (1)

tsm_sf (545316) | more than 4 years ago | (#32004624)

'Common Sense' and 'Law' are two totally distinct entities. Tears of frustration and rage will ensue if you continue to conflate them.

Re:Rediculous interpretation of law (1)

countertrolling (1585477) | more than 4 years ago | (#32004628)

Sometimes law is the polar opposite of common sense

Re:Rediculous interpretation of law (2, Insightful)

Scarletdown (886459) | more than 4 years ago | (#32004662)

I believe with eBay, to be able to resell that item as an Omega watch, you have to jump through countless flaming hoops to prove that it is not a counterfeit (effectively provide a notarized affidavit signed in triplicate, sent in, sent back, lost, found, lost again, recycled as firelighters, and buried in soft peat for six months).

Without such proof, you would not be able to mention the Omega name or show the logo on the item if you want to sell it.

And that would be a trademark violation, not copyright. Or just to cover everything, call it an imaginary property violation.

Re:Rediculous interpretation of law (2, Informative)

mybecq (131456) | more than 4 years ago | (#32005018)

So, if I live in England, legally buy an Omega watch there, then legally immigrate to the US, it is now a copyright violation to resell that watch on eBay?!? This flies in the face of common sense!

See USC TITLE 17 > CHAPTER 6 > 602 (a) (3) (B) [cornell.edu] . That is not an infringement.

Re:Rediculous interpretation of law (1)

pilgrim23 (716938) | more than 4 years ago | (#32005056)

Consider the antiquarian collector. A First Folio Shakespeare might be covered by a copyright issued for a new printing, edition, revised font, scholarly criticism edition of say the Tempest. Thus, a $12.95 modern paperback now can be used to halt the sale of a 6 figure valued volume? Are they really trying this hard to create a new black market for every sale possible? "Psst! I have some food.. Cheap!"

Sorry, but copyright does control imports (0)

jmorris42 (1458) | more than 4 years ago | (#32004542)

Copyright is an artificial government grant of monopoly over reproduction and public performance of a work. A foreign import isn't reproduced under that monopoly grant and is thus illegal to import or sell in the US. Black letter law guys. The fact that in small quantities (and marked up over the closest local version as in the typical import album) the rights holders don't mind, but they still possess an absolute legal monopoly on reproduction of copies for sale inside the US so if they do decide they don't like an import they have the right to forbid it.

And the same legal theory exists in most, but not all, other countries.

You don't have to agree with the reasoning behind copyright, you don't even have to belive they should exist. The fact is they do exist and unless you want to change the law it is what it is. This isn't even a DMCA like abuse of the copyright clause in the US Constitution, it is the very heart of what copyright is.

Re:Sorry, but copyright does control imports (4, Insightful)

Trepidity (597) | more than 4 years ago | (#32004592)

The fact that the Supreme Court took the case suggests that it isn't black-letter law, doesn't it?

Re:Sorry, but copyright does control imports (3, Insightful)

jmorris42 (1458) | more than 4 years ago | (#32004874)

No, it is an indicator of a worse problem. We used to have the Rule of Law. Now we have the Rule of Men. Problem is what I wrote above is so self evidently correct that this case shouldn't have made it into a courtroom at all. In a sane world, any competent attorney would have explained the law, charged the client for an hour and that would have been that. But because both sides correctly understand the bizarro reality we actually live in they are rolling the dice; since justice is now whatever a judge says and their views are randomly distributed.

The difference is when you have the Rule of Law the laws are knowable and mostly predictable. Courts are mostly occupied with determining the facts of the particular case and then applying the law to them. The occasional case will test an unexpected corner of the law but it an exception. Now the written laws mean little and judges apply their opinions of 'justice' to cases and their rulings are thus mostly unknowable beforehand. This of course means everyone take a try at court as soon as they have nothing left to lose.

Re:Sorry, but copyright does control imports (1)

elrous0 (869638) | more than 4 years ago | (#32004598)

Except the first sale doctrine has alwasy been considered sacrosanct part of the law in the U.S., especially for tangible goods. If I want to sell my used car, I shouldn't have to check in with GM first to see what price they'll let me sell it at, or to whom I may sell it.

Re:Sorry, but copyright does control imports (1)

BUL2294 (1081735) | more than 4 years ago | (#32004710)

Under the logic of the 9th Circuit, if you legally import a classic Jaguar from Europe, you have to get permission from Tata Motors to resell it!

Re:Sorry, but copyright does control imports (1)

MoonBuggy (611105) | more than 4 years ago | (#32004730)

Interesting point - I hadn't considered it like that. How does that account for the fact that so many things are manufactured abroad, though? If the product is manufactured in China under license of the US copyright holder, half the shipment goes straight to 'official' distributors in the US, and the other half is bought cheap in Russia and then imported to the US by a third party, it seems to cast a shadow on the concept that the product was not authorised for US sale.

There's also the fact that, in this particular case, Omega had no right to register the copyright on their logo in the first place. It should be a trademark, and thus the case would be a non-issue. Could still set an interesting precedent for games, CDs and movies, though.

Re:Sorry, but copyright does control imports (1, Informative)

Anonymous Coward | more than 4 years ago | (#32004828)

Except that importing a legally sold good is not the reproduction or public performance of the item. The importer is not in fact reproducing the work or making a public performance of the work - how are they violating the copyright? (and do remember that the item in question is a legitimate copy, produced by the copyright holder)

Re:Sorry, but copyright does control imports (1)

selven (1556643) | more than 4 years ago | (#32005082)

Copyright is an artificial government grant of monopoly over reproduction and public performance of a work. A foreign import isn't reproduced under that monopoly grant and is thus illegal to import or sell in the US.

Wait, what? Copyright is a monopoly over reproduction and public performance, so it makes it illegal to import goods legally created in another country but sold for lower prices? I fail to see the logical reasoning here.

Re:Sorry, but copyright does control imports (2, Informative)

mybecq (131456) | more than 4 years ago | (#32005186)

A foreign import isn't reproduced under that monopoly grant and is thus illegal to import or sell in the US. Black letter law guys. The fact that in small quantities (and marked up over the closest local version as in the typical import album) the rights holders don't mind, but they still possess an absolute legal monopoly on reproduction of copies for sale inside the US so if they do decide they don't like an import they have the right to forbid it.

Too bad that isn't how they ruled in QUALITY KING DISTRIBUTORS, INC. v. L’ANZARESEARCH INT’L [cornell.edu] .

Held: The first sale doctrine endorsed in 109(a) is applicable to imported copies. Pp. 3—18. ...
(b) The statutory language clearly demonstrates that the right granted by 602(a) is subject to 109(a).

Law and Precedents (1, Interesting)

zero_out (1705074) | more than 4 years ago | (#32004556)

I read the article, and I have to say that I am still baffled by how much US law relies on precedents. Judges are fallible humans. Even after several rounds of appeals, erroneous judgements happen. Prior to emancipation, the US Supreme Court issued rulings in favor of owning slaves. If the court followed precedent, then it should have ruled against Lincoln's emancipation proclamation. Ruling on precedent is the same as answering the question "why do we do this?" by saying "because we always have." Why does so much of US law rest on precedent, when it's obvious that past rulings are sometimes (often) flawed? Please, don't say "because we always have."

Re:Law and Precedents (1, Interesting)

Anonymous Coward | more than 4 years ago | (#32004800)

By relying on precedents, it is easier to tell what the law is. You don't have to worry about a future court interpreting the same law a different way.

If you want to change the law, you can still do it through Congress. Even the Constitution can be amended if you don't like how the courts have interpreted it.

Re:Law and Precedents (1)

Matrix14 (135171) | more than 4 years ago | (#32004832)

While you may agree or disagree, the guiding principle behind this reliance on precedent is that people should know what the law is going to do. Even if a court rules in a way that is completely ludicrous to those in the know, later courts of the same jurisdiction cannot overrule it , or at least are loath to do so, so those subject to the law will know how it will be applied in the future.

Re:Law and Precedents (1, Insightful)

Anonymous Coward | more than 4 years ago | (#32004838)

Precedent can be overruled, if it is flawed. In practice, I think this happens rather less often than it should. But here's the argument in favor of (some degree of) adherence to precedent.

Laws will never be precise enough that all judges will interpret them exactly the same way, so their will be corner cases where legitimate differences of judgement arise. If each judge makes a determination from scratch, then anyone unlucky enough to fall into one of these edges will get a different outcome depending what judge presides over his trial, which is bad. Also, consider the effect on people trying to obey the law unclear -- obviously, you stay out of the corners, since you can't be sure how your judge would interpret it, effectually broadening the law to the broadest reasonable interpretation (which is the wrong bias), and yet randomly failing to punish some incursions because you "got lucky" wrt judges.

By relying on precedent, the first judge who rules on some vague provision of a law lays out an interpretation, and after that everyone knows how it will be interpreted at their trial. Same justice for everyone, and if that interpretation turns out to be wrong, it may be corrected both by later judges, who can overturn bad precedent at will, and by the legislature, who can amend/replace the legislation to make it more specific and eliminate the misinterpretation.

Re:Law and Precedents (1)

Tanman (90298) | more than 4 years ago | (#32004868)

Stability.

Re:Law and Precedents (2, Interesting)

Obfuscant (592200) | more than 4 years ago | (#32004936)

Ruling on precedent is the same as answering the question "why do we do this?" by saying "because we always have."

No, it's the same as saying "because the supreme court decided that way in a similar situation, and it's a real waste of time to try to reverse the supreme court with our own fanciful rulings". That doesn't seem to stop the Ninth Circuit, however.

It's also a way of adding inertia to the system, which in the long run is a good thing. It's very hard doing anything under a system that flip-flops every time a judge farts. Or in a country where three regions (circuits) operate under courts that rule one way and the rest under different rulings.

That's also why the inertia of having a bicameral legislature is worth the effort.

Re:Law and Precedents (0)

Anonymous Coward | more than 4 years ago | (#32004982)

Simply put, precident or stare decisis http://en.wikipedia.org/wiki/Stare_decisis, is the mechanism that entables Jugdes to edit the law.

We rely on precedent because statutes and regulations don't specify the outcome of all controversies. Large bodies of law don't originate in statues at all, and others, like the US constitution are highly abstract, and require substantial guidance to apply to particular cases.

This creates uncertainty that leads to controversies. When parties to a controversy disagree on what the law is or how it should be applied to a set of facts, a Judge decides. The rule that past decisions can be controlling authority helps provide predictability to the law.

Wrong decisions are made and occasionally overturned. But this is the process that the US uses to create and maintain the laws governing much of our society.

BTW the Civil War was effectively legal controversy decided extra-judicial means.

Re:Law and Precedents (1)

nomadic (141991) | more than 4 years ago | (#32004996)

The idea is that it's just the courts' job to interpret the law; if they interpret it incorrectly chances are that it was the legislators fault for drafting it poorly, or not anticipating certain issues. And unfortunately before the Emancipation Proclamation there was no federal legal impediment to the existence of slavery.

Already against the law in the UK (5, Informative)

thisissilly (676875) | more than 4 years ago | (#32004582)

Tesco (think British Wal-mart) was legal purchasing Levi's jeans in Europe from wholesalers, and then reselling them in the UK for lower price than Levi's wanted them sold there. Levi's sued them, and won [bbc.co.uk] . We can only hope the US Supreme Court sees things differently.

Re:Already against the law in the UK (2, Insightful)

Tacvek (948259) | more than 4 years ago | (#32004796)

That case is just plain absurd. The argument in that case being that Importing and selling a branded item may violate the trademark rights of the brand holder? That argument could only possible be valid in the case of counterfeit goods. Otherwise trademark law just does not work like that. As long as I am selling genuine levi's jeans, I am using the trademark (the Levi's tag on the product) in a purely descriptive manner, which is part of what trademark law explicitly does not prohibit.

Unless I am missing something, I must conclude that the judge was clearly unfamiliar with the law, and depending on the lawyers to properly argue both law and fact, which is something judges do all too often despite the fact that that is forbidden. The results are verdicts that are inconsistent with the law itself.

Re:Already against the law in the UK (1)

PCM2 (4486) | more than 4 years ago | (#32004876)

But the Tesco/Levi's case didn't hinge on copyright, if I understand it, but on trademark law and trade regulations. Tesco was free to buy Levi's from Italy or Spain, for example, but was importing them from countries outside the EU, which is forbidden without the consent of the manufacturer.

What I don't understand is that the fact that Levi's were available at a much cheaper price in Eastern Europe sounds like classic dumping on Levi's part, which should mean Tesco can bring a complaint to the European Commission -- but perhaps that's not an effective process in practice?

Re:Already against the law in the UK (1)

MoonBuggy (611105) | more than 4 years ago | (#32005100)

Tesco [...] was importing them from countries outside the EU, which is forbidden without the consent of the manufacturer.

What's the logic behind making that illegal?

Re:Already against the law in the UK (1)

DigiShaman (671371) | more than 4 years ago | (#32004918)

If that's the case, couldn't you now sue Levi directly for Price Fixing?

"Grey Market" (3, Informative)

tlhIngan (30335) | more than 4 years ago | (#32004632)

I don't know why it's a copyright issue, since it's a physical item, but usually we call such legitimate imports "grey market" goods. They're not officially for sale ("white market") nor are they illegal to sell ("black market"), but they're legally sold goods for distribution elsewhere that's re-imported for local sale.

Happens all the time even with IP materials like books, CDs and DVDs. Hell, Amazon and Walmart are probably the biggest "offenders" - I can buy two CDs, one locally and one from Amazon (or Walmart) and the local one is from the Canadian distributor, while the one I got from Amazon (or Walmart) comes from the US.

Ditto books - sometimes the US-Canadian book pricing is so out of whack, it's cheaper to get it from Amazon.com than Amazon.ca even with shipping charges.

Camera manufacturers used to be the biggest PITA regarding grey market goods - if you imported a camera, they would insist that warranties and such were only honored in the purchasing country - buy it in the US, service is done in the US, other countries would not touch it. Oh yeah, and the return shipping, to that address in the country.

Thankfully, for most products this doesn't happen (it's not strictly illegal, but it's a great way to piss off customers) anymore - I figure most companies gave up trying to track serial numbers and points of origin, and lets them move inventory around as needed by demand.

Of course, importation of such products is perfectly legal.

Re:"Grey Market" (1)

Kjella (173770) | more than 4 years ago | (#32004714)

Been there, done that... actually I'm picking up my new video camera tomorrow. No wonder when the US model costs 999$ and the EU model 999E. Plus I get another 10 fps going from 50 to 60 fps as a bonus, as long as it doesn't break.

Re:"Grey Market" (2, Interesting)

phorm (591458) | more than 4 years ago | (#32005034)

Thankfully, for most products this doesn't happen

It does for a lot of laptops. That's why many companies seem to have - for example - a model that ends in -US or CA. The major model number on the top may say DX8200, but the stamp on the bottom is more specifically a DX8243CA...

Oh Ninth Circuit! You loveable rogue! (0)

Anonymous Coward | more than 4 years ago | (#32004648)

The United States Court of Appeals for the Ninth Circuit, practicing judicial activism in the face of common sense since I would wager most /.'rs can remember.

Whether it's overzealous application of honest separation of church and state (Newdow v. U.S. Congress) or trampling our already shaky right to privacy (Kyllo v. United States) my heart is simply aflutter to hear what they come up with next.

First-sale doctrine and copyright law (1)

MSTCrow5429 (642744) | more than 4 years ago | (#32004656)

The first-sale doctrine doesn't apply to copyright? Does the Copyright Act have a parallel provision to s. 526 of the Tariff Act of 1922?

Er, Doctrine of First Sale? (1)

Rene S. Hollan (1943) | more than 4 years ago | (#32004664)

Or am I missing something?

If the importer imported it, he/she purchased it (or obtained it on consignment, which is probably unlikely), and can do with it what they wish.

As far as controlling a use of a thing, that would be a matter for a license, not a copyright.

I do recall a case in Canada, though, where an importer of toy cars obtained them legitimately, but was barred from selling them and competing with an "official" agent, on the basis of the copyright on the packaging, but I think that was a different case: while the toy was legit, the license to print packaging outside of Canada was not.

College Textbooks (1)

mahsah (1340539) | more than 4 years ago | (#32004668)

If the Supreme Court makes a stupid ruling on this college students will be even more screwed than they are already. "International Editions" of textbooks are usually less than half the cost of a "domestic" edition and have the exact same content most of the time.

One thing at a time (0)

Anonymous Coward | more than 4 years ago | (#32004762)

Does this mean someone explained to them the difference between an e-mail and a pager?

This is a copyright case!?! (3, Funny)

0xdeadbeef (28836) | more than 4 years ago | (#32004804)

At what point was the watch disassembled at a molecular level and then reproduced in bulk by a nano-lathe?

Copyright holders rights over lending DVDs? (1)

grolschie (610666) | more than 4 years ago | (#32004808)

As an aside, what's with the unauthorized "lending" restrictions printed on some DVD covers and inside some books? Reselling? Hmmm....

ex-roommate imported books (1)

amigabill (146897) | more than 4 years ago | (#32004994)

An old roommate of mine was from India, and he could order engineering textbooks from back home in India for equivalent of US$3 or $5 or so, the bookstore would sell the same title to me for $85 or so. Amazon wasn't up quite yet back then, but still not nearly as cheap as India anyway. My friend says the price difference must be due to lower quality of paper the Indian coy was printed on. Eh, sorry, your paper may be a bit floppier, but I don't think that difference is worth around US$80.

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