U.S. Supreme Court may revoke the right to resell

[thomasmorus]

Originally Posted by HarryT

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.

There have been nummerous anti-trust lawsuit and massive fine paids expecially by the car producers within the EU as the tried to stop so called "Grey Imports" expecially between different EU countries. This happend as taxes on cars are quit different within the EU, especally between the large car producers (Germany, France, Italy) and the non car producing nothern countries (Danemark, Netherlands), which made quite a differnce in the before tax price, and as the after tax price (is only paid if you use the car locally, there is quite a marked to reimport cars especially to Germany). Also the same pricinble goes between EU and non EU counties, but here is the power of th EU Commison not so strong, as the manufacureres can force the reseller in the third country in a binding contract not to resell to the EU, and as long as the local third (not EU) country allows this the EU can not files suit.

[Andrew H.]

Originally Posted by Japes

The issue at hand here is simply the fact that this person bought product legally (albeit overseas) and sold it legally. To me, honestly, it's completely absurd. If this ruling is upheld, not only would it likely kill all manufacturing here domestically, but, it would kill alot of the import/export trade. It would also hurt the consumer in that, for example, you might no longer be able to find discounts on just about anything (perfumes, in my specific case...my business).

No, that's not the issue at hand. If it were that simple, the court of appeals wouldn't have ruled the way it did and the supreme court wouldn't have agreed to hear the case.

The relevant provision provides: "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 infringement of the exclusive right to distribute copies or phonorecords under section 106, actionable under section 501."

IOW, under this statute, a distributor who imports copies of copyrighted works into the US without the authorization of the copyright holder is infringing. And because the distributor is infringing - according to the court opinions - the first sale doctrine does not apply, since it only applies to items that were "lawfully" bought.

I don't know to what extent this will affect manufactured goods, since they are not - I don't think - "copies...of a work."

[Giggleton]

Originally Posted by Andrew H.

No, that's not the issue at hand. If it were that simple, the court of appeals wouldn't have ruled the way it did and the supreme court wouldn't have agreed to hear the case.

The relevant provision provides: "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 infringement of the exclusive right to distribute copies or phonorecords under section 106, actionable under section 501."

IOW, under this statute, a distributor who imports copies of copyrighted works into the US without the authorization of the copyright holder is infringing. And because the distributor is infringing - according to the court opinions - the first sale doctrine does not apply, since it only applies to items that were "lawfully" bought.

I don't know to what extent this will affect manufactured goods, since they are not - I don't think - "copies...of a work."

Well in fact a lot of manufactured goods are copies of a work, the electronic device you used to write your post is a copy of a good first manufactured abroad. Well at least the code used to run the device is, but that's just getting into semantics...

[Jozawun]

Originally Posted by Andrew H.

I don't know to what extent this will affect manufactured goods, since they are not - I don't think - "copies...of a work."

It will apply to manufactured goods if they are protected by copyright - for instance watches inscribed with a distinctive logo (as in the Omega-Costco case) and high class perfumes (where the labels and/or bottle shapes may be copyright). There are probably any number of other cases.

[HarryT]

Originally Posted by Jozawun

It will apply to manufactured goods if they are protected by copyright - for instance watches inscribed with a distinctive logo (as in the Omega-Costco case) and high class perfumes (where the labels and/or bottle shapes may be copyright). There are probably any number of other cases.

Logos and bottle shapes are trademarks. They have (to the best of my knowledge) nothing to do with copyright law.

Trademark law is what has been used to restrict grey imports in the EU, in that the courts have ruled that the trademark holder has the right to control distribution.

[JoeD]

Originally Posted by Harmon

This is not quite correct.

When you sell an item on ebay, the amount you are paid for that item is, legally, "income". All of it. It doesn't matter whether you are in business or not.

However, all of that income is not taxed. You only have to pay tax on the amount of the income in excess of what the item cost you in the first place - i.e., on the profit.

I'm not sure that's the case. There's a point at which you are considered a trader and if you fall into that definition you must register yourself for tax purposes either as self-employed/sole trader or under a business entity and file appropriate tax returns, even if you've made a loss.

However, there's also sales of goods that do not count

http://www.hmrc.gov.uk/guidance/selling/examples.htm

From what I can gather, there's both intent of profit and other guidelines for whether you fall into the trading category vs just selling old stuff, but there's also a £6,000 individual item limit, where even if you're not selling commercially you've to pay capital gains tax on any item sold worth more than that.

Example 4
Monique inherits from her grandfather an Impressionist painting valued at £120,000. She puts it into a safe deposit box for nine months whilst she decides what to do with it. As she is getting married later in the year Monique decides to sell it to pay for her wedding.

She puts it up for auction at an established auction house during the tax year 2006/07, and it fetches £194,000.

Monique did not purchase the picture for resale at a profit and is not trading. There is no commerciality to this transaction. However, the picture was worth more than £6,000 when sold, and is not exempt from Capital Gains Tax (CGT).

Because Monique sold the picture for more than its value at the time she inherited it, and made a chargeable gain of more than £8,800 she will be liable to CGT.

In this example, she's clearly made a profit but it's not considered "income" because of the profit, it's only to be declared because the sale was worth more than £6,000.

It stands to reason you can buy a shirt for £30, then later decide you want to get rid of it and sell it for £60 and not have to declare it. However, if you start buying lots of these shirts at £30 because you know you can make some money on them, you're clearly trading, whether you try to hide the fact or not. Or if the shirt is worth more than £6,000 you've to pay tax.

All that said, I'm not by any means certain, anyone planning to sell items should probably check it out for themselves. As for me, anything I buy with an intention to make money from (whether I do or not), goes into the business. Anything I buy for me/hobbies (that didn't go via the business) and later sell whether at a profit or loss is just money to spend on further hobbies. From what I can tell that falls within the guidelines the HMRC have on their website.

[Giggleton]

Originally Posted by HarryT

Logos and bottle shapes are trademarks. They have (to the best of my knowledge) nothing to do with copyright law.

Trademark law is what has been used to restrict grey imports in the EU, in that the courts have ruled that the trademark holder has the right to control distribution.

That omega costco case sounded a bit weird, omega placed a small design on the back of the watch so that the watch would be copyrighted and so that costco would not be legally able to sell the watch in the U.S. If someone can explain that better please go ahead.

If all this Kirtsaeng case does is make the publishers set a global price for their goods, well that would be a bit upsetting but we still have the redigi case to look forward to.

Some librarians are going to talk about it tomorrow lol,

http://www.visualwebcaster.com/event.asp?id=89442

[JoeD]

Originally Posted by HarryT

I don't believe so. You cannot resell eBooks, downloaded music, etc.

You can resell software though.

http://curia.europa.eu/jcms/upload/d...cp120094en.pdf

the first sale in the EU of a copy of a computer program by the copyright holder or with his consent exhausts the right of distribution of that copy in the EU.

I skipped quoting a few clauses to that, but assuming those conditions are passed, would exhausting your exclusive distribution rights be analogous to the US first sale rights?

[Jozawun]

Originally Posted by HarryT

Logos and bottle shapes are trademarks. They have (to the best of my knowledge) nothing to do with copyright law.

Trademark law is what has been used to restrict grey imports in the EU, in that the courts have ruled that the trademark holder has the right to control distribution.

I should have been clearer.
Bottle labels have been treated as copyrighted works in the US cases; as has a design on the back of the Omega watches.
And, of course, it is perfectly possible for a bottle shape to be a copyrighted artistic work (though I must admit that I don't know if any jurisdiction has ever accorded this status to the Coke bottle).

[teh603]

Originally Posted by Giggleton

That omega costco case sounded a bit weird, omega placed a small design on the back of the watch so that the watch would be copyrighted and so that costco would not be legally able to sell the watch in the U.S. If someone can explain that better please go ahead.

If all this Kirtsaeng case does is make the publishers set a global price for their goods, well that would be a bit upsetting but we still have the redigi case to look forward to.

Some librarians are going to talk about it tomorrow lol,

http://www.visualwebcaster.com/event.asp?id=89442

I mentioned something like that several pages back. And I'm still wondering about the ultimate effect on American manufacturing.

[Jozawun]

Apparently the Supreme Court hears oral argument on October 29.
Does anyone know how long that Court usually takes to then give its judgment?

[HarryT]

Originally Posted by teh603

I mentioned something like that several pages back. And I'm still wondering about the ultimate effect on American manufacturing.

Why should it have any effect? We're talking here about imports done without the copyright/trademark holder's permission, not sales in general.

[whitearrow]

Originally Posted by Jozawun

Apparently the Supreme Court hears oral argument on October 29.
Does anyone know how long that Court usually takes to then give its judgment?

Usually within a few months, but absent extraordinary circumstances, by no later than the end of the term, which is the end of June.

[Giggleton]

Originally Posted by HarryT

Why should it have any effect? We're talking here about imports done without the copyright/trademark holder's permission, not sales in general.

See, the books in question had a label on the front stating not for sale in the United States, Kirtsaeng simply thinks that he has the right to sell the books. I have to agree. He bought the books, he can sell the books, what is a national border but an imaginary line anyway??

[JoeD]

Originally Posted by Giggleton

what is a national border but an imaginary line anyway??

What are laws but words on a page?