Supreme Court sides with student in case over textbooks
salon.com
salon.com
> Third, Wiley and the dissent claim that a nongeographical interpretation will make it difficult, perhaps impossible, for publishers (and other copyright holders) to divide foreign and domestic markets. We concede that is so. A publisher may find it more difficult to charge different prices for the same book in different geographic markets. But we do not see how these facts help Wiley, for we can find no basic principle of copyright law that suggests that publishers are especially entitled to such rights.
FINALLY! Someone's finally seen what Robert Heinlein wrote in Life-Line and essentially just paraphrased it:
> There has grown up in the minds of certain groups in this country the notion that because a man or corporation has made a profit out of the public for a number of years, the government and the courts are charged with the duty of guaranteeing such profit in the future, even in the face of changing circumstances and contrary to public interest. This strange doctrine is not supported by statute or common law. Neither individuals nor corporations have any right to come into court and ask that the clock of history be stopped, or turned back.
The problem with physical books is that they can't do it. The know it, the court knows it.
But with this ruling, it is now clear that the thing that region codes aim to prevent would be completely legal except for the DMCA's circumvention provision. So in some sense, this is a much more blatant example of copyright owners writing their own laws.
Programming exercises and whatnot are fine and dandy on a glowing screen, but despite working on computers since 8 years old, my brain demands non-glowing, ink-on-pulp copies for deep thought. Surely I'm not the only one?
In general the whole textbook industry makes me sick. But fact is that lecturers are entirely responsible for it. The publishers can only do what the lecturers let them do, and either through apathy or greed the lecturers have shirked their responsibility to their students.
The heroes in this game are the instructors who are creating open-source textbooks.
Most of the professors gave away the slides of the course, and even more additional material; these ones gave nothing but a bunch of literally useless tables and charts, completely worthless for the exams.
Needless to say, this textbook was the only and obligatory literature for the course.
2. There is really no way to force a student to do anything.
Disclosure: I list some printed texts and reference books as required on my syllabi. I do this because I give open-book, open-note exams; but I do not allow the use of electronic devices (except pocket calculators).
It all depends on the prof and the content.
My wife bought a "textbook" for a language class and it was, and I kid you not, 300 loose pages with binder holes punched in them. See, it's a textbook AND a workbook! And sure, some of the pages were workbook pages. But there's no way any bookstore would buy that back as soon as the shrinkwrap was broken.
There is no excuse, though, for having to sign up for an account with a commercial publisher for exercises that are a part of your grade in that class. Normally you would pay a bunch of TAs to administer and grade the tests, but the university is too short of funds for that. So they outsource the grading to a commercial entity.
Of course, they will still suggest looking at some textbooks, but only on the rare occasion that they don’t want to include a proof or more information in the notes themselves - and then these books are naturally available in the library’s reference holdings.
In another case, our professor contacted the author of the book and got cheap locally printed and bound copies. Something like $15 vs. $180.
I think you are seriously overestimating the financial gains such a professor would make. I've taken several classes with profs who teach from their own textbook; the profit per book sold that a prof receives is usually minimal (either because the book is sold for near cost or because the publisher takes most of the profit). In fact, most such textbooks (essentially just rigorous lecture notes) are downloadable for free anyway.
If you want to make extra money as a professor, writing a textbook and then forcing it on a single class of students is about the least effective money-making scheme I can think of.
Later on I took MITx's prototype 802.11x online course, where I learned far more and managed an A. In that case the professor actually cowrote the textbook, but there was a free online copy for the online class, and the textbook was actually good.
Edit: in another case, another course at the same university used a custom printed textbook sold exclusively by the university for well over $100, that was just a few chapters from one $15 book and the complete contents of another $20 book bound together.
I know that there were ulterior motives on the professor's part because I specifically asked to just print it out myself and was told that the TAs had been specifically banned from allowing students access to the PDF version for printing.
This was a 300 person lecture taught twice per year.
300$352 is $21,000. Suddenly that looks pretty appealing to the professor who thinks he could use a new bass boat this year.
As to his profit, I'm not sure how much he made off of each book, but the book is used across the world. The only reason I think any instructor would use his book is because it's a niche subject matter; the mechanics and theory of hydronic heating systems.
If Dr. Hydronics ever reads this--you're probally a nice guy, but you made a relatively simple subject complex. Funnel your sentences. Use numbers. Don't use unnessary words. KIS(keep it simple).
I would definitely drop a class where a professor started a semester by doing something so ethically gray.
It was hand-bound by some poor soul in the printing office and was clearly churned out with a laser printer, but it got the job done and saved everyone a bundle.
If the prof made some money off of this, I'm fine with that.
Where I studied (undergrad, at least), there were conflict of interest rules -- professors were not allowed to collect royalties on books they use in their classes.
At my undergrad, there were some profs concerned about files of old tests.. the obvious solution is to vary the test. The more subtle solution is to use the same test but switch which numbers are where. It still trips people's "I've seen this before!" feeling but if they try to memorize it, they're sunk.
Would you please recommend what I might do, subject to severe limitations of (1) time and (2) political clout within my department?
Second, if you are grading homework then produce your own problem sets. You already have to do this for exams, which means you know what you expect your students to learn, so you may as well produce the problem sets as well. At the very least indicate what types of problems a student should practice on so they can follow along in the book they do have.
Third, thank you for lecturing. I know that lecturers hate the raw deal with textbooks as well.
This doesn't require any explanation other than inertia.
I recently taught a course on ODEs, and it took far more than "a few hours" to curate enough online resources to cover the curriculum. The sad truth is once you get out of calculus, the number of quality online resources for advanced mathematics decays rapidly, and the coverage gets spotty as well.
This is not to mention that those resources rarely agree on notation, which makes them more confusing to students (and therefore less helpful). There's something to be said for requiring a single edition of a single textbook, just for consistency's sake, even though that's caused all this publisher drama in the first place.
> No USF employee may receive any money in exchange for requiring a textbook. However, if the professor is the author, royalty payments may be received.
It references and quotes Florida Statutes 1004.085. "An employee may receive: ... Royalties or other compensation from sales of textbooks that include the instructor’s own writing or work."
Just in case you don't think FSU or USF are reputable, I found http://www.thecrimson.com/article/1985/10/4/sandel-donates-b... from Harvard, back in 1985:
> Harvard has no policy on whether professors can profit on the sale of texts to students in their classes. The University leaves that decision to the individual instructor, according to faculty officials.
or more recently (Harvard, 2008) http://www.thecrimson.com/article/2008/3/4/professors-find-d... :
> Since N. Gregory Mankiw returned to Harvard to teach the College’s introductory economics class, 2,278 students have filled his weekly lectures, many picking up the former Bush advisor’s best-selling textbook, “Principle of Economics” along the way. ... So, what has professor of economics Mankiw done with those profits? ... “I don’t talk about personal finances,” Mankiw said, adding that he has never considered giving the proceeds to charity.
Given that Florida law doesn't prohibit collecting royalties and that a Florida school and a Massachusetts school both allow collecting royalties from assigning one's own text books for class, I think the burden of proof is on you to show that "most reputable universities don't let you do that."
(In any case, I went to university about 20 years ago, and the laws and rules were different than. But it doesn't look like it's changed all that much.)
I'd add that if cheating is a concern (whether from using books whose solution set is easily available, or using in-house solution sets that don't update with each year), then assign watching a previously recorded lecture (by the professor, or one of the excellent already available ones online) as homework, and use the in-class time to have quizzes, tests, or professor-assisted homework sessions. In addition to weeding out cheaters there's the benefit, if you believe Salman Khan, that such methods are probably better ways to learn the material.
Finally, it's not too time-consuming for a professor to scan the problem sets from the book and distribute them to the students. So long as the problems aren't highly specific to the text, the student ought to be able to solve them without the text. For many subjects there are lots of free resources out there to learn from.
It's, admittedly, more work, but what good thing isn't?
My point is, if a lecturer is really dedicated to providing the best possible experience to his students, he doesn't need a textbook. I'm not saying that it's easy, or that it doesn't require a lot of time and effort from his part. It does. Some lecturers chose to accept the load, while others go the easy way and just point to references and exercises in the book.
That could be an interesting solution, but is mostly practical if you already have tenure, since it is a quick way to not get tenure otherwise. If you spend your junior professorship time writing a textbook (in a field that already has many) rather than spending that time on more research and publications, tenure is unlikely. If you're tenured and have been teaching the same course for a while, on the other hand, you both have more leeway to spend your time doing that, and may have already sort of "naturally" accumulated years worth of notes from previous iterations of the course. Then it can be a good idea, and many senior professors do prefer this approach, because it lets them teach the course in a way precisely in line with how they feel the material should be taught, rather than having to buy into someone else's approach.
Universities could influence that outcome at all levels if they wished, though. Universities formally budget preparation time per course. Currently it's typical to budget quite little, because the assumption (and sometimes requirement) is that you'll be teaching using a standard text in the field. If they instead want extensive preparation to be done, along the lines of what you propose, they can: 1) budget sufficient time for it, e.g. specify that each course requires, say, 100 (or 200, or whatever) hours of preparation prior to the beginning of the semester; and 2) expect that the preparation time be used towards the budgeted end (i.e. expect extensive independent course materials to be developed for each course, in line with the amount of time budgeted).
[1] Note to the pedantic: I am taking license with the fact that I've only read a few first edition textbooks- and they sucked. "Most" in this case should be read as a rhetorical vehicle.
This isn't really true. A majority of my math text books at UW were written in note form by the professor teaching the class. They were just very efficient...and hey, its math where a glossy text book really gives you nothing.
> Currently it's typical to budget quite little, because the assumption (and sometimes requirement) is that you'll be teaching using a standard text in the field.
This is definitely not true in math and barely true in computer science. I think it is true in physics and chemistry, but only for entry-level courses. It also depends on the university.
Open sourcing material between professors could go a long way; each could simply collect what they want for the course and then easily publish it in electronic (free) or paper form (students pay printing costs). I think this is how it mostly works already in upper division courses.
Sometimes there is a very nice up to date book; but just as often, say in computer science, everything is out of date anyways (computer architecture, compilers, ...).
I haven't surveyed everywhere in CS, but I know the operations of quite a number of schools, and I don't know any that budget significant preparation time for "normal" classes. Some do allocate extraordinary preparation time if you're developing a completely new course that's never been taught at the school before. But in the common case, where it's a longstanding standard course, you're expected to use reasonably standard material, whether it's whatever was used in the previous professor's version of the course, or some moral equivalent that you're expected to be able to adopt within <10 hrs. You definitely aren't supposed to (officially) spend more than a minor amount of time preparing your own curriculum and pedagogical materials for the course.
You never learned to share?
Or find one of the many "released free for use" maths texts[1][2] that are "out there" and see if one is suitable for your classes?
[1]: http://people.math.gatech.edu/~cain/textbooks/onlinebooks.ht...
Tried it. Those god-damned greedy SOB's buy up all the previous editions and shred them. It's hard to find copies even on the internet after a couple semesters. I still list previous editions of texts on my syllabi though, but students who are on fin-aid are herded toward the campus bookstore.
The sad reality of the situation is that a professor's student evaluations (which do matter for things like tenure) will be negatively affected by the decision to use an old edition. Yes, sometimes it makes sense to tell an unprofitable/annoying customer to go away, but professors don't have that luxury in the university environment.
Edit: Curious why this is being down-voted. The truth hurts?
We have a program to help educators quickly get up to speed using our content with minimal effort
With print-on-demand: https://www.createspace.com/Products/Book/#content6
That's fine if they do that. That's what they should have be doing all along instead of trying to destroy the first sale doctrine using foreign distribution.
This "greed" idea is just not a thing. It's a meme that's repeated in places like HN, but not something that really exists out there in the real world. There'll be isolated cases, but it's not even a little bit relevant to a discussion of why textbook industry is able to extort students.
In so far as profs. are responsible for "collaborating" with the industry, it's because of inertia, and a poor understanding of the alternatives. And probably also laziness. :)
Include a useless, but harmless, insecticide in the paper of international editions to "fight bookworms". Then lobby to get insecticide books banned domestically due to "potential health risks".
Under one interpretation, if you buy a book outside the US, your ability to resell it in the US without permission depends on whether or not the book was made in the United States.
Under the other interpretation, "lawfully made under this title" means more that the making of the item itself was within the legal construct of copyright. That is, not pirated or counterfeit.
This second interpretation is what the majority opinion espouses, and the dissenting opinion aligns with the first.
This may be unsatisfactory for people concerned with software or e-book licenses, but Omega v. Costco might have come out differently if this had been decided beforehand. In that case, Omega sued Costco for reselling watches because they registered a copyright* for a logo on the back of the watch. Omega claimed that Costco had no first-sale protection from copyright since the watches were not made in the US. The 9th circuit agreed, SCOTUS split 4-4 (Kagan self-recused) and the 9th circuit stood.
The majority opinion implies that it's perfectly fine to fly to a foreign country, purchase legitimately sold watches, toasters, electric kettles, and books and bring them home for sale. (Subject to applicable duties, etc.)
Yes, manufacturers will probably not just throw their hands up and give up on price discrimination. I have no idea what they will do. But the profits from Country X still might trump any loss of profit/image due to importation and resale in the US.
Scrambling chapters in textbooks might work, but then they lose some efficiency and flexibility, for example: the option of liquidating inventory to a low-margin market when a new edition comes out in the US at a higher profit margin.
* Generally brand logos are trademarked, but they can sometimes also be copyrighted. It's a little muddy, and arguments exist whether or not, say, Mickey Mouse could become/remain a trademark after the copyright protection expires.
EDIT: To clarify what I meant by "I have no idea what they will do": I am not entirely without ideas of approaches companies could take; the suggestions in other reply threads here are definitely candidates. I just don't think I can predict the specific action[s]. Maybe 'all of the above' for some, maybe the status quo for others.
Stall. Send out some FUD. Maybe lobby for higher duties (as compared to tariff rates).
But most of the goods that have sufficiently large price discrepancies are going to a digital manifestation anyway.
So region-coding, DRM and the DMCA will (continue to) be the order of the day.
Not sure I see the distinction. According to the WTO, "customs duties on merchandise imports are called tariffs."
It's also only about the exhaustion of the distribution right of the specific item that was purchased. It has nothing to do with a right to copy or circumvent access/copy protection etc.
Therefore, region free players have nothing to do with this whatsoever, unless, perhaps, they have a copyrighted work painted on them or something.
As for DVDs: Theoretically, if you managed to find a legitimately produced DVD in China (made with the rights holder's permission) you could bring it back to the US and sell it.
Whether or not you can legally play that DVD in the US on any particular player is an entirely different and more involved question involving a bunch of DMCA caselaw.
The opinion itself: http://www.supremecourt.gov/opinions/12pdf/11-697_d1o2.pdf
The dissent is perhaps most interesting.
Breyer won six votes for his strong pro-competition, pro-market, IP moderate position.
Remember that in Eldred v. Ashcroft (q.v.) Breyer wrote one of two vigorous dissents against the essentially permanent copyright terms now in force. Former justice Stevens was the other.
Stevens was also joined by Breyer in the split decision in Bilsky where they won four votes (with Ginsburg and Sotomayor) for serious restrictions on patents for software and business methods and possibly total exclusion from patentability for those arts.
In short, Stevens was a great loss and Breyer is still a national treasure. Let's hope we get more like them and fewer like Kennedy, who always seems to be on the wrong side of IP cases. (Alito, Roberts, and Scalia are very bad, too, but haven't been as consistent trying to destroy our industry as Kennedy.)
However, it is certainly true that a junior Associate Justice is not exactly a one-for-one replacement. Stevens' seniority and eloquence gave him an influence that will be hard to match.
Ironically, when he first came onto the Court, Stevens was not regarded as a particularly effective Justice, because he wasn't a team player. Perhaps it simply takes time. And in that sense, perhaps we're better off having Sotomayor in place earlier, rather than having Justice Stevens try to serve for a few more years.
I personally thing the requirement to always have a new textbook(that years version) is more ridiculous then the prices they charge. I don't know where that requirement stems from, but in my opinion it is the real problem.
But with that said I don't see this ruling lowering prices, if anything it will increase the prices in the other regions where the prices were previously lower.
There is no kind of magic bullet with these kinds of things, companies are not going to just lower profit margins, they will always try to make it up somewhere.
http://content.efollett.com/HEOA/library/HEOATextbookProvisi... Provision C.1.c:
Publishers are required to provide [to the professor or other book chooser]...
>A description of the substantial content revisions made between the current edition of the college textbook or supplemental material and the previous edition, if any.
I'd like to see this information made public in a reliable manner. It's well and good that the professors should be enlightened about the relevant content changes, but the spirit of the HOEA is to make textbooks more affordable and purchasing more transparent. If that's really the end-goal, then forcing publishers to make that information public and consumer-facing should be the true requirement.
Until students have that, they're beholden to the professors (who may have ulterior motives) when making the purchasing decision.
Text books are somewhat irrelevant however — the Court upholding the first sale doctrine is fantastic, and hopefully will open the doors for lots more exporting / importing.
But in the US, students demand that their education is like high school, with a set text and all, and if the exercises in "Physics for Biologists", 9th edition are on a different page from "Physics for Biologists", 8th edition they complain. This is the root cause of the continuous revisions to undergraduate texts.
What? I've never heard this particular demand (and I just graduated from a US college). Sure, students might complain about having the wrong edition - but only when lecturers assign work by page number, so that it becomes impossible to do it with the wrong edition. Do you have any evidence that this is the students' fault?
You teach a specific topic; and supplementary reading and extra information on that topic will be available in any reasonable textbook of that subject. You might recommend a textbook that, in your opinion, explains it clearest; but in a few of my college years I managed without reading a single textbook as the lectures + prof's online notes + my work experience covered almost everything, and the rest could be looked up online or simply asked.
This is largely speculation, but it's the conclusion I've drawn from my experience in community college (my university experience was more specialized and used effectively no textbooks):
Students very often saw themselves as customers to a university, and the consumerist mindset of always being right was unfortunately brought along with this. If they got something wrong, they didn't accept blame for that: they'd push it off onto the TA or onto the professor. One easy vector for that was to blame it on the particular variation of book they had used, so professors started moving towards simply mandating a single golden text and teaching directly out of it.
I got the sense that a huge part of it was because the faculty had gotten together and agreed on this solution as the simplest one; it was particularly palpable in cases where the professor was dismissive of and disgusted by the mandated textbook.
o.O Seriously? How have I never heard that this happens? That's ridiculously sane.
If a lecturer ever did say only a single textbook was allowed, a lot of people would laugh and ignore them (especially those people who prefer using library books to buying their own, since libraries don't usually stock enough copies of a single textbook). It's not like translating 'read chapter X for the tutorial on Y' into your chosen textbook is hard, that's what tables of contents are for.
I genuinely don't understand why all the US uni students in this thread talk about declarations by lecturers that some textbook is Required as if it was illegal to disobey. What am I missing here? It's not like the uni has any way of checking what you've bought, surely?
ETA: Also see sibling comment from CamperBob2 for a good example of how students see themselves as customers of teachers.
(Admittedly this is for a humanities subject - it's be slightly different for less research-orientated subjects like maths - but even there, having a question set that you hadn't seen before is surely what you expect, not something to complain about. Otherwise it's testing you on memory recall rather than mathematical ability).
At least here if a student believes to be seriously wronged, he can take a re-exam in front of a committee with other prof's, not involving the teacher; and prove that his knowledge is really superior to the grade given, and this has happened; but it definitely isn't the easy way out - it works in cases of malice or prejudice, but not for laziness or 'optimization'.
If you have a weak department leadership, and a strong dean of students (one who favors student excuses), you can have a lot of students who will successfully challenge grades on dubious grounds.
If you have already graded the student according to your conscience, then you've done your job properly; and you don't need to drop down to the level of rules lawyering - in any case, the grade mostly matters as the indicator of knowledge and if somebody wants a falsified indicator to flatter himself, then let him waste his time on that. The main (only?) value of grades is as feedback; if they want to waste that feedback, then it's their loss.
I don't grade according to my conscience, or at least I try very hard not to. I try to grade as fairly and objectively as I can.
>and you don't need to drop down to the level of rules lawyering
I personally try very hard not to pander to this kind of crap. I think it misses the real point and simply invites more abuse. Sometimes it takes a willingness to tell those higher than yourself in the hierarchy to sit on it and spin. That's not always easy for everyone to do.
>The main (only?) value of grades is as feedback; if they want to waste that feedback, then it's their loss.
That's mostly right. I wish it was absolutely right. But, it's naive ignore the notion that some will judge your grades as an objective indicator of ability. In some areas (medical school candidates?) competition is such that students are desperate to have only perfect grades.
Also, as for requiring the newest edition, it's because bookshops may not have older editions in stock, so you cannot require an older edition. Therefore, the only way to make sure all students can get the same edition of a textbook you have to ask for the newest one.
Yes, it sucks. The solution is to scan the problems you want to assign and make them available as PDFs to students, but most professors are too lazy or don't have time for this.
As someone doing a humanities subject, our textbooks don't have problem questions, they're just textbooks. But even for subjects like maths, the lecturers generally have their own set of questions rather than using textbook ones (usually with only minor changes from the ones used by whoever lectured that course last year) and put them online - e.g. http://www.damtp.cam.ac.uk/user/examples/
I envy the UK system in this regard. But the practical issues of convincing US universities to switch to the UK model are significant.
If this case went the other way, it would have had all sorts of negative impacts to used item markets. I'm relieved the business-friendly supremes didn't cough up another loss for the consumer.
The solution as I see it would have been to say that monetary expenditure doesn't constitute speech and is thus subject to regulation. If people want to propagate political messages free of charge in order to get around the regulation, I think I'd be okay with that. That feels like a legislator's turf rather than a judiciary's turf, but I'm not entirely sure; the dissent's opinion didn't seem to suggest this solution, so I might be completely off-base or it really is a legislator's turf thing.
The SCOTUS certainly has an idealogical split (as in conservative vs liberal) but the categories are far more nuanced than just Republican or Democrat and I think they've been doing a decent job.
I went looking for a history of USC Title 1 Section 1, but I couldn't find anything, and I think that numbering system was only set up in 1920 anyways.
Again, I'm not an expert in this field. I could totally be wrong. But you're going to have to be a little more convincing than "No it's not" to overrule Wikipedia.
I don't know where "94% of the lifetime of the law itself" and "inspired by British practices" come from, so I can't really dispute those.
People don't lose their 1st amendment rights simply because they are organized as a corporation. The law can't favor free speech for some corporations/groups (New York Times, MSNBC, UAW, etc.) but not others (non-profit groups like Citizens United).
On top of this, the speech involved was political speech, something that lies at the heart of free speech principles rather than more controversial areas of free speech theory (advertising, obscene or vulgar speech, etc.).
The main argument against Citizens United seemed to be a dislike of the source of funding for the speech (i.e. trying to get 'money' out of politics). But you can't take that approach to the problem without explaining why media corporations (TV networks, newspapers, online media) get some special consideration.
The common ground in this area seems to be in better disclosure and transparency regulations.
This assumes that any speech or political contribution by a corporation is automatically assented to by everyone who is associated with the corporation. Ask the employees or shareholders of a large corporation how many of them agree with using the corporation's money for the campaign contributions it makes.
If people want to express their individual opinions, they can express them individually. If they want to express opinions as a large group, they can all sign the same letter or petition. Using company money to do things that only some of the company's owners or employees would assent to is not "free speech"; it's misuse of company money. That used to be called "embezzlement", not free speech.
The law can't favor free speech for some corporations/groups (New York Times, MSNBC, UAW, etc.) but not others (non-profit groups like Citizens United).
I agree with this; I don't see why the New York Times should get any special privileges because it's a "journalistic organization". But that just means everybody should have to abide by the same rules; it doesn't mean the rules should allow corporations to do things with company money that many if not most of their employees and shareholders would not agree with, just because those things happen to be "speech".
The idea that a group of people (organized as a church, club, corporation, partnership, union, political party, non-profit, etc.) can only 'speak' as a group by getting every 'member' to explicitly sign a document for each and every instance of 'speech' or expenditure of money is entirely unworkable.
But, as I posted in another response in this thread, the real fix for this is legislative, to change the laws governing corporations and nonprofits to fix the huge abuses of corporate governance that go on today.
But the New York Times and Citizens United are both corporate entities. Few would question the NYT's right to publish editorials that promote specific political opinions and candidates, correct? What can you say about the NYT that you can't say about CU?
If they want to express opinions as a large group, they can all sign the same letter or petition. Using company money to do things that only some of the company's owners or employees would assent to is not "free speech"; it's misuse of company money. That used to be called "embezzlement", not free speech.
Your argument has a trivial workaround, which would have been put into widespread practice if the Citizens United decision had gone the other way. Every corporation in America would have added a line to its charter similar to whatever line in the NYT charter causes it to be considered an editorial publisher. If necessary, a similar line would have been added to every employment agreement signed by every corporate employee upon being hired.
Actually, if anything, CU would be less open to the issue I'm raising, of corporate money being expended for purposes that many or most of its shareholders do not agree with. CU was organized for the express purpose of political speech; NYT and most corporations are not. And most corporations are not even organized for the express purpose of publishing speech in general, as NYT is. That means most corporations shouldn't be able to make the same kinds of assumptions about what speech their shareholders would assent to, that the NYT can.
Every corporation in America would have added a line to its charter similar to whatever line in the NYT charter causes it to be considered an editorial publisher. If necessary, a similar line would have been added to every employment agreement signed by every corporate employee upon being hired.
Yes, you're right, in a practical sense this is what would happen. But that just underscores how broken corporate governance is now. The legal fiction of a "corporation" is abused in all manner of ways. IMO it would be better to restrict what "corporations", particularly publicly traded ones, can do with corporate money, and how broad their charters can be. But that's really a legislative fix, not a judicial one.
True, but I don't see how to fix it without serious unintended consequences in other areas.
The idea that a corporation must be organized for an "express purpose," declared in advance, that will determine that corporation's rights relative to others, is troublesome to put it mildly. A government that enforces things like that WILL enforce things that you and I don't like as well.
Maybe I didn't make myself clear enough. I'm not talking about suppressing corporations' political speech specifically. I'm talking generally about corporations not being able to use company money for purposes not agreed to by a majority of shareholders. A corporation like NYT (or CU, for that matter), which is organized specifically for the purpose of publishing speech, is in a different position in that regard from a corporation which is organized to sell people crop seeds.
The idea that a corporation must be organized for an "express purpose," declared in advance, that will determine that corporation's rights relative to others, is troublesome to put it mildly. A government that enforces things like that WILL enforce things that you and I don't like as well.
The government is what gives corporations their legal privileges in the first place. Without the government, a corporation is just a bunch of people. It's government that allows corporations to shield their shareholders and officers from personal liability, take advantage of tax deductions for business expenses, etc.
I should make clear, btw, that I am not advocating removing all the aspects of corporations as legal persons. There are a lot of aspects of that that are very useful; for example, allowing corporations to enter into contracts and other legal agreements. I just don't think that automatically means that corporations must have all the aspects of legal persons, which is the underlying assumption behind the claim that corporations somehow automatically have free speech and other rights simply because they're legal persons.
First of all, "people" don't lose their rights when they organize as a corporation. They still, as individuals, have the same rights they had, as individuals, prior to forming the corporation.
Forming the corporation then creates a legal entity which has, and which passes on to them, certain additional privileges that individuals do not typically have. For example, they gain strong protection from personal liability.
And it has long been recognized that, in order for corporations to work and to be useful -- and they are certainly useful for some purposes -- the privileges extended to this legal entity must resemble, in some ways, the rights afforded to individual persons. For example, a corporation needs to be able to enter into contracts, a corporation needs to be able to file suit, etc.
The tricky question is: which specific set of privileges should be extended? In other words, what is the minimum we must do in order for the corporation to be useful?
And this is not idle when it comes to questions of speech. An argument can be made that granting corporations the "right" to engage in political speech grants no right at all -- rather, it rigidly constrains what the corporation can do, since now arguments can be made about whether support for this candidate or that ballot issue best fulfills the corporation's duty to its investors. Do you really want to have directors sued because they directed the corporation to "speak" for a candidate who later enacted regulations that reduced the value of the shareholders' investment, for example?
Articulating a clear line, which allows corporations to do what they need to do for business to work, but which doesn't go further than that, and which doesn't lead to absurdities like a corporation being forced to "speak" for a particular candidate in order to fulfill its duties, is hard.
While I applaud digital distribution, the lack of consumer rights comparable to the first sale and fair use doctrines is a large and growing problem.
Oral Argument recordings:
http://www.supremecourt.gov/oral_arguments/argument_audio_de...
Opinions:
Had it gone the other way it would have been an utter disaster and contrary to every common sense
Still it concerns me that 3 judges sided with the publisher. In such a landmark decision even 6 to 3 seems to close a margin for comfort.
If you read both the court's opinion and the dissenting opinion, you'll see that the dissenting opinion is strictly based on interpretation. The supreme court not only attempts to interpret how to apply the law, but determine what congress' intent was when enacting the law.
If you look, you'll see they often specifically refuse to join in footnotes/etc that cite congressional intent or history.
That's the way intent is read in contract law: it's judged objectively (from the position of a reasonable person in the position of the parties at the time of contracting), subjective intentions don't matter. [Edit: while true of English contract law, this is apparently not accurate for US contract law: see DannyBee's reply]
(I'm only guessing - I'm an English law student, so not familiar with US supreme court justices, so could be completely wrong on what they're doing. [Edit: yup, I was.])
English contract law is a bit different than US. In the US, it's not objective in general (contracts are held against the drafter, and subjective intent matters).
Your description of objective intent is well, not intent in this case :) Objective intent of congress would be what a reasonable person making the statute would have meant, not what a reasonable person reading the statute would think it meant.
The second is in fact, what is done, but is not related to intent at all, it's related to interpretation.
As for congress's intent, Scalia is of the firm view that either objective intent, or subjective intent does not matter. The words mean what they say, and say what they mean, and if they don't, that's a problem for the legislature. In cases of ambiguity, he believes in plain meaning, not objective intent. So he'll use a dictionary, not try to figure out what congress objectively meant.
He's fairly unwavering in the above, though if you look through hundreds of opinions, you can generally find one or two that are not consistent with this.
http://www.claremontmckenna.edu/salvatori/publications/RARSc... and http://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=... are fairly good descriptions of his approach
It is, in part, an explicit repudiation of English common law.
(Note that I generalized. There are areas where subjective intent does not matter, and areas where it does, but it's nowhere near as objective as English law)
There is no "the other way", because they had more than just two options. For instance, they could have said that (1) when a copyright owner sells a copy in the US, first sale applies to that copy regardless of where that copy was manufactured, and (2) unauthorized import of a copyrighted work is a violation of the distribution right.
This would have had essentially no effect on first sale 99.9% of the time, without for all practical purposes eliminating 17 USC 602 (one can make a decent case that 17 USC 602 should be eliminated--but that is something for Congress to do, not the Court).
But it just makes me sad this had to get to the Supreme Court.
Not being a lawyer, isn't this the best result possible for consumers in terms of establishing precedent?
Ultimately, I benefited greatly from the cheaper books. I doubt the end result is going to be a net-decrease in the price of books. Rather, some books might become inaccessible by the poor in developing countries. But what about the poor in developed countries, you ask? Hard question to answer.
Isn't the exact reverse more likely? You only ever need one copy of a book to make more copies. All that this could lead to is a (futile) continuation of the trend of US publishers changing versions of a book sold directly in other countries. But developing country cheap copy publishers can just copy a US version and/or a domestic version of the book.
So, a "stratification" of books (US version, domestic version + digital versions) will be continue to be available to developing countries and pirates.
The real difficulties will be the poor/legal prices in the US. I suspect students photocopying library books will only increase in fashion.
You can complain about publishers all you want, but the net result of this change will simply be less affordable textbooks sold to the developing markets. Maybe that's just a short term result and new entrants will figure out how to profitably target the developing world with high quality material, but the short term affect will be a decrease in those low-cost editions sold overseas.
What we need is enough schools and teachers with an incentive to contribute to a public domain textbook system. Each contributor should write a good presentation of a specialty or a favorite subject. Then the whole book will be among the best textbooks possible.
And the textbook cartel will collapse in the USA and the less developed world while students have better books for free.
The rest of the world is self sufficient, especially in academical sense, and if the current publishers won't serve them well, they can and will immediately make and print own texbooks. They are definitely economically worth doing on their own (every single country is, not to mention, say India+UK together) and afterwards these local publishers will try to export them to USA at prices that would really undercut current ones - so current publishers won't want to rock the boat.
European market (for textbooks in Eglish) already uses the international versions due to lack of IP protectionism legal insanity that could prohibit mass import; but all my MBA books were stamped with a wishful statement 'not to be sold in USA/Canada' that carries no legal obligations to anyone here. There is no deficit of high quality material. There is no practical force that would make it difficult to replace any publisher wanting to raise prices here - competition is fierce, there are many alternatives for most subjects, supply is larger than demand; profs can do without the textbook publishers (if really neccessary, without ALL of them) but the textbook publishers need profs to recommend them.
Everything is sold with particular assumptions. Consumers often use their purchases in ways the seller didn't foresee.
I think it's important to stick to text books though and not venture into software or cell phone territory because it's a very safe bet that no contract was ever signed and no agreement was ever entered into other than "here's my money, give me that book."
Then you specify that assumption and the penalties for breaking it in a contract, which both parties sign. That's why I find the phone unlocking thing so baffling--you're already under contract, why do the carriers care if you unlock your phone so long as you don't violate the terms of the contract?
Title 17 of the U. S. Code Section 602(a)(1) “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 infringe- ment of the exclusive right to distribute copies or phonorecords under section 106, actionable under sec tion 501.”
The Court is empowered to throw out unconstitutional legislation. It is not empowered to throw out Constitutional legislation that happens to be a bad idea.
[1] On everything from campaign finance to drone strikes, nobody bothers drawing the very important distinction between "bad idea" and "unconstitutional."
If we want to be in control of our own governance, we would be better served if elected Congressmen make the laws rather than nine old people who are accountable to no one (even if those nine old people are brilliant thinkers).
More generally, I'm quite wary of situations in which the Court second-guesses Congress. Every time the Court does so, it uses up some of the Court's political capital, which is ultimately the only thing the Court has to enforce its judgments. Even though I'm a liberal, I tend to be very skeptical of judicial activism because I think that political capital should be saved for when it is really necessary.
(According to insiders from the administration, Bush thought the campaign finance law he signed was unconstitutional, but he punted the unpopular job to the Supremes.)
That's clearly not the only possible reading - 3 of the justices came to a different conclusion. But the idea that a court giving giving a reasonable interpretation of a mildly ambiguous statute is "throwing out a law... merely because they think the law is a bad idea", just because another interpretation is possible, is nonsense.
[1] http://www.supremecourt.gov/opinions/12pdf/11-697_d1o2.pdf
When reading Supreme Court opinions, I am often blown away by the well reasoned, logical arguments, that support findings I disagree with. You can disagree, but you can't say they don't have some facts and logic to stand on.
If you've never read an actual Supreme Court opinion, I would highly encourage you to do do. The linked article here is just awful. It doesn't even provide the case name. The opinions are surprising easy to read, and flow pretty well. The language isn't difficult, and they can be surprising humorous. If you can make it through a C++ book, then you'll have no problem understanding the basics.
https://en.wikipedia.org/wiki/Omega_S.A._v._Costco_Wholesale...
So Costco still won in the end.
Omega was appealing the decision last I heard.
Cr_ppy Omega watches are overpriced anyway.
So imagine you're a publisher and you sell a math book in the USA for $60 and in a 3rd world country for $20 so that more people can afford it and you can establish a presence there.
Is it fair for people from that 3rd world country to sell the book back to the USA and for you to miss out on your profit?
I know most of us here love having the freedom to do whatever we want but we need to look at the RESULT of the decision, not the EMOTIONAL return of the decision. Sure it makes us feel good to know we can sell what we want to where-ever and whom-ever we want. But what if the result of that action is a bad thing?
I think it's quick sales like this that will push more publishers to:
1) Move towards digital only distribution with heavy DRM.
2) Increase prices in the USA to make up for the loss in profit.
3) Increase prices in other countries to discourage the overseas exporting.
4) Retract themselves entirely from smaller markets.
Am I missing something, or not seeing the benefit? Seriously critique my thoughts, I want to see both sides to this.
The law should only be concerned with fairness insomuch as it informs "right vs wrong". Nobody is entitled to a business model.
Yes, and no better reasoning is required other than "It's my book now and I'll do whatever the fuck I want with it."
If you restrict what people can do with their own stuff just because of the indirect effect on a current business model then you'll simply snuff out other (better) business models.
Free and open-source software may have never become popular if MS had been able to complain that it was eating into their business model and affecting their ability to "give away" software to universities and schools, and that's just one example.
That is not the job of the Supreme Court. They are supposed to decide based on what the law says, regardless of the result. If you disagree with the law, then write to Congress.
But it's fair to ask whether this will produce better or worse results. It's a good observation that this will cause publishers to shift out of poorer markets and increase the use of DRM[1].
The previous situation was not perfect though, either. To interpret that statute geographically would be a major restriction on trade; and if not, would create a lot of ambiguity. Nobody wants to purchase something from another country if they are worried that the manufacturer will come in later and take it away because it had some copyrighted design (which could be anything) on it somewhere.
I believe the results will be better overall (by a lot) under the new interpretation of the law. Clarity and simplicity about where you stand as the owner of property is incredibly important.
One way to think about it is that nothing has changed. The publisher can still create a contract with the buyer that says they won't resell it in another region. It's just that the "default" purchase contract does not give the publisher that right. And we should make defaults match expectations as closely as possible, otherwise people are entering into contracts they don't understand. The notion of purchasing a product has many expectations that go with it that have been developed over millennia. To allow the publishers to inject extra terms that contradict those expectations just to fit their particular business model is ridiculous.
[1] Though DRM wouldn't be nearly as bad if there were no DMCA and if the sellers were forced to call it "licensing" rather than "buying". Again, the default purchasing contract should match the expectations of both parties.
"A geographical interpretation would prevent the resale of, say, a car, without the permission of the holder of each copyright on each piece of copyrighted automobile software. Yet there is no reason to believe that foreign auto manufacturers regularly obtain this kind of permis sion from their software component suppliers, and Wiley did not indicate to the contrary when asked. See Tr. of Oral Arg. 29–30. Without that permission a foreign car owner could not sell his or her used car."
Doesn't the National Treatment Policy state that imported goods shouldn't be treated differently than locally-produced ones? And doesn't restricting the first-sale doctrine on imported good break that very rule?
I'd love for someone to explain how this relates to international law that we're supposed to be following. I'm always curious abou this stuff, and I can't find anything good in my Google searches.
(I realize that the WTO is rather toothless, but still.)
The old-textbook publishing market will probably decline in the near future as people move to digital and interactive options. This will be a big improvement, but the publishers will once again have control. There will be many free options available though.
This is also another blow to the academic publishing racket. In response, they might stop publishing cheap international editions. I hope the availability of high quality open source textbooks and material from MOOCs will cause the developing world to adopt them instead. However, there is a chance that pirated copies - either digital or facsimile copies of US editions - will flood the asian markets. This already happens today but at a small scale.
If these countries are relatively free of government collusion with established (or establishing) producers, then ultimately competitive pressures could rectify that as market demand gets satisfied; but in the short run prices up, quality down.
If you had to draw some line, you might notice that the dissenters, Ginsburg (80), Scalia (77), and Kennedy (76), are the oldest on the bench.
I wouldn't read too much into that, just thought it was interesting. We probably already make too much of the "right/left" line in the court, since cases like this--where people don't cleanly line up according to political ideology--are fairly common.
And it's instructive to contrast textbook prices with the very reasonable student discounts on software. Software labels are trying to create customers for life, while book publishers are price gouging while they can.
The fact that this had to come up as a question to begin with demonstrates a critical flaw in our system. A Flaw with IP law, and with the ability of high dollar interests to influence our government.