Hacker News Reader

Comment by droithomme | Hacker News Reader

Whichever way they rule it is going to be interesting.

If they bless the sales, it legitimizes what is already a very active global gray market.

If they condemn the sales, they strike down the first sale doctrine and it is a massive blow to fundamental property rights. As commenters have already pointed out earlier this year regarding this case, since most electronic goods are made overseas, it would be officially illegal to resell them without permission. Criminalizing the resale of foreign made goods that contain an IP component. It would also provide a massive benefit to moving manufacturing of every kind overseas to obtain this special new protection.

View on HN

>If they condemn the sales, they strike down the first sale doctrine and it is a massive blow to fundamental property rights. As commenters have already pointed out earlier this year regarding this case, since most electronic goods are made overseas, it would be officially illegal to resell them without permission

You've left out a possibility: they condemn the sale without striking down first sale. They can easily distinguish these book sales from other potential first sale situations because the former involve goods where the first sale occurs outside the US and the goods are then imported without permission of the copyright owner, whereas the later involve goods where the first sale occurs in the US and if the goods were imported before that sale it was by the copyright owner.

Actually, no. If they condemn the sales, then they have effectively restricted what you can and cannot do with overseas produced goods. Then everything gets sold from overseas to bypass first sale.

No. They can condemn the sales by saying that 17 USC 602 controls in this situation, leaving first sale (17 USC 109) applicable to goods that have not been imported without authorization.

Briefly, 17 USC 106 says that copyright owner has the exclusive right to distribute copies. 17 USC 109 (first sale) says that once a particular copy has been distributed under the authority of the copyright owner, it is no longer a violation of the distribution right for others to redistribute that copy. 17 USC 602 says that importing copyrights works into the US without permission of the copyright owner violates the distribution right.

It doesn't matter where it's made. It's where it's authorized to be sold. The publisher will find it difficult to argue that the book they themselves imported was unauthorized.

"If they condemn the sales, they strike down the first sale doctrine "

...only for goods manufactured outside the US and not authorized for import to the US by the manufacturer. Most electronic goods in the US that are made overseas are also authorized for US import. I bought my iPhone directly from Apple. Even if the Supreme Court rules against the sales in this case, I will be able to resell my iPhone because Apple authorized its import...they were the ones that imported it.

Unless the phone was first bought overseas. This may have big implications for second-hand markets like ebay as you can not really be sure where a good sold on ebay was manufactured, which countries it was authorized to import and who has the authority to authorize that. In fact, with such decision, each foreign item becomes potentially a problem for the buyer unless he has a proven certificate from original manufacturer authorizing import into the country the buyer is resident in. This of course would be a huge boon for these manufacturers as they would be able to charge extra for such certificates and suppress secondary markets. But it would not be as good for the consumers.

> electronic goods

But this case is apparently about copyright, and hardware isn't usually subject to copyright. Though I suppose firmware, etc. might be.

Of course, I think it's ludicrous that anyone could be guilty of a copyright violation without having, by any imaginable definition, made a copy of anything.

> But this case is apparently about copyright, and hardware isn't usually subject to copyright. Though I suppose firmware, etc. might be.

There's no might, here. The firmware, OS, hell, even the branding text on a label is subject to copyright. See, for instance, the ruling in Omega v Costco, where a logo was enough to bring copyright infringement charges against Costco for importing foreign-market watches.

Copyright is normally copy and other rights. Thus, for many years, "this edition not available in the United States" was printed in UK editions of many books.

I think (but I'm not sure) that the UK makes a difference between personal sales of out-of-country goods (this is okay) and a business selling out-of-country goods (this is not fine). A notable case is Tesco vs Levi jeans. There have been some other cases involving DVD importing.

Copyright law governs both the creation of copies, and their distribution. This pairing is one of the law's longest-standing and must basic features. It's also the root of the conflict in this case.

> Copyright law governs both the creation of copies, and their distribution.

This is an interesting idea that I haven't heard before. In what ways has copyright law governed the distribution of objects when no copying is involved?

"This DVD is licensed only for private, non-commercial use."

That's backed up by copyright law. If you build a theater, charge people to enter, and program runs of classic movies, you will get sued for violating the commercial-distribution aspects of copyright law, even if you bought the DVD you were charging others to see.

"you will get sued for violating the commercial-distribution aspects of copyright law"

I think that's incorrect. I think this would be infringement due to it being considered a public performance, not commercial distribution. As the copyright act says, "A public performance or display of a work does not of itself constitute publication."

The MPAA also describes the situation as a public performance issue:

http://www.mpaa.org/contentprotection/public-performance-law

Do you know of any cases where a public performance was prosecuted as a commercial distribution case?

I'm a producer, not a lawyer, so I can't quote you legal chapter and verse. But as your own link makes clear

"But suppose you took the same movie or TV episode and showed it to patrons at a club or bar that you happen to manage. In that case, you have infringed the copyright in the video work."

Whether a public performance constitutes legal publication is, of course, a separate issue. The point I was making is that copyright law governs both duplication and distribution, not duplication only.

The distributed object is a copy. This court case does not apply to the sole copy of a manuscript.

Reply on news.ycombinator.com