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Old 10-08-2012, 12:39 AM   #1
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U.S. Supreme Court may revoke the right to resell

According to a MarketWatch article the U.S. Supreme Court will hear a case to determine if the First Sell doctrine only applies to U.S. manufactured goods. Apparently, a student from Thailand that was attending school at Cornell University discovered that his textbooks were a lot more expensive here in the U.S. than the same exact textbooks sold back in Thailand. The student had a great idea -- buy a crap load of the books in Thailand, ship them to the U.S., and resell them on eBay. He made over a million bucks. He was working under the assumption that once he bought the books that he could resell them without any copyright problems because he believed the First Sell doctrine would apply. However, the publisher took him to court and he lost. The lower court ruled that the First Sell doctrine only applies to American-made products or “copies manufactured domestically”. The student appealed the decision but the appeals court also sided with the publishers. The case is now going to the Supreme Court. If the Supreme Court sides with the publishers it could have far reaching consequences, including providing manufacturers with further incentive to move production of goods overseas so that they can gain control over the resale of goods. After all, if First Sale doctrine only applied to U.S. manufactured goods then if you wanted to sell a car made overseas you would need to get permission (and/or pay a fee) from the original manufacturer before you were allowed to sell your car.

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Old 10-08-2012, 12:49 AM   #2
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Where the two first trials decided by jury?
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Old 10-08-2012, 01:04 AM   #3
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Where the two first trials decided by jury?
The first trial was a jury trial, but the trial court did not allow the jury to consider the first sale doctrine because it found as a matter of law that it did not provide a defense. The appeal was heard by a panel of judges, which upheld the ruling of the trial court.
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Old 10-08-2012, 01:12 AM   #4
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The first trial was a jury trial. The appeal went to the Second Circuit so it was just decided by judges. Here is a better link on the case. This article also says, "[Due to this ruling] the first sale doctrine would not apply to goods made overseas." However, I don't know if this would really apply to all goods, or just copyrighted goods.
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Old 10-08-2012, 01:21 AM   #5
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Where the two first trials decided by jury?
From what I've read, the original case was a jury trial. The trial may be decided by a jury or a judge (a criminal defendant can, for instance, can opt to waive the jury). Appeals courts never have juries. There would only be another jury if a new trial was ordered.

Last edited by Fluribus; 10-08-2012 at 01:30 AM.
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Old 10-08-2012, 01:47 AM   #6
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I struggle to see relevance. Is there, or is there likely to be, a market for used e-books that would be affected by this?
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Old 10-08-2012, 01:51 AM   #7
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Why would First Sale Doctrine not provide a defence? What has the origin of the product to do with the right to re-sell? If you buy some items on a foreign trip would you be prohibited to put them up at a yard sale? The foundation of capitalism is that goods can move freely. If you allow, in this case publishers, to stop alternative sales (not talking piracy here) then you put the market forces out of play. An importer of goods, be it Canadian beer, German cars or Thai books, are re-selling something bought in a foreign country.
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Old 10-08-2012, 02:10 AM   #8
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I don't know. My local used book store has quite a few books and old issues of magazines from countries other than the US. Of course, he's not making enough money to draw attention to himself.
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Old 10-08-2012, 03:10 AM   #9
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Not to be a panicky Pete but this sounds like it could destroy both the economy and industry overnight. Why would anyone buy anything if they have to jump through hoops to resell it or give the manufacturer a cut?
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Old 10-08-2012, 03:18 AM   #10
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Why should the origin of the goods be relevant, anyway?

This smacks of protectionism.

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Old 10-08-2012, 03:21 AM   #11
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Why should the origin of the goods be relevant, anyway?

This smacks of protectionism.

Graham
Goods are priced differently for different markets, and many publishers do print cheap editions of books for markets like India and, presumably, Thailand, too. If these "grey imports" were permitted (they have long been ruled to be illegal in the EU) the result would be that the publisher would stop printing these editions, and it would be poor countries that would suffer as a result.
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Old 10-08-2012, 04:09 AM   #12
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Goods are priced differently for different markets, and many publishers do print cheap editions of books for markets like India and, presumably, Thailand, too. If these "grey imports" were permitted (they have long been ruled to be illegal in the EU) the result would be that the publisher would stop printing these editions, and it would be poor countries that would suffer as a result.
The publishers (international, publicly held ones) cannot stop printing these editions. They are compelled by shareholders to seek growth; growth will not come from the US or the EU. Management knows they will be out if they abandon growth markets. They would adjust, and continue printing and selling, if forced to. To avoid that, they will continue to pay government officials.

If any big publisher did stop selling in China, India, Thailand...competition would quickly take their place, with the help of the local government. They each know this. None of the publishers have anything that matters that cannot quickly be replaced or gotten another way. It's not like India will collapse if the only Tom Clancy available are bootleg copies.

The EU and its member States, just like the US, has a long, sordid history of protecting the interests of its corporations at the expense of its citizenry.
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Old 10-08-2012, 08:46 AM   #13
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Originally Posted by HarryT View Post
Goods are priced differently for different markets, and many publishers do print cheap editions of books for markets like India and, presumably, Thailand, too. If these "grey imports" were permitted (they have long been ruled to be illegal in the EU) the result would be that the publisher would stop printing these editions, and it would be poor countries that would suffer as a result.
The result would be that publishers would have to lower the prices they charge in rich countries to roughly match the cost of buying abroad, importing and reselling.
It is called free trade.
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Old 10-08-2012, 09:11 AM   #14
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If they were identical to the books found in the US, then theoretically all were made in the same place, either domestically with some for export, or elsewhere with some for US import. If the latter, you could argue none would include first sale protection.
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Old 10-08-2012, 09:38 AM   #15
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Originally Posted by HarryT View Post
If these "grey imports" were permitted (they have long been ruled to be illegal in the EU) the result would be that the publisher would stop printing these editions, and it would be poor countries that would suffer as a result.
Until this case, grey market textbooks were sold in the US, and I don't think too many people were thinking there was a legal risk. I bought one once. Because it is harder to sell back used at the end of the semester, I'd only do it in a special situation.

I've also bought books that aren't published in the US at any price. Here is an example.

Questions:

-- If this ruling is upheld, does that mean you can order the same grey market book from a seller abroad to be mailed here, but not from a seller based in the US?

-- Does it make any difference whether the book is published in the US as well as abroad?

-- What if the US version is slightly different?


Quote:
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The result would be that publishers would have to lower the prices they charge in rich countries to roughly match the cost of buying abroad, importing and reselling.
There are other options. The publishers could just accept that there will be a few grey market sales. Or they could do more to differentiate the content of the overseas editions. Or they could raise everyone's price
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