A friend on Facebook had a link to an article on The Atlantic about a new interpretation of existing copyright law, and it has serious ramifications for everyone.
The Doctrine of First-Sale (something that’s been around since 1908) means that a copyright holder only has control over the first sale of their item. For instance, it’s illegal for you to make a copy of my book and sell it to someone else; you’re selling a first copy, and that money belongs to me. However, you can buy my book and then sell that copy; that constitutes a second sale, which doesn’t belong to me.
The problem that’s going up before the Supreme Court is that some manufacturers are gouging the U.S. public and are now angry that people have found ways around it. For instance, it’s widely-known that American drug companies sell the same drugs in Canada and other countries for less than they sell them in America. They’re angry when Americans cross the border or go online to buy drugs in other countries for much less than they pay for them in America, and they have been trying to make that illegal–even though people have a valid prescription and are buying from licensed pharmacies who have the legal right to dispense said drugs.
Then there’s this ongoing case:
John Wiley & Sons, a textbook publisher, sells expensive versions of the textbooks here and less expensive versions abroad. Supap Kirtsaeng, a foreign graduate student at University of Southern California, decided to help pay for his schooling by having relatives buy him copies of the foreign versions abroad, send them to him, whereupon he’d sell those books on eBay to willing students. He’d make money, the students would save money, but Wiley might have fewer sales of its pricey American versions. The [lawsuit against him] is styled Kirtsaeng v. John Wiley & Sons.
That’s classic American capitalism being shot in the foot. In a free-market economy, yes, you have the right to charge whatever price the market will bear, but other people also have the right to undersell you.
And another case:
Omega, the Swiss maker of fancy watches, sued Costco, a major retailer, for selling real Omega watches that had a copyrighted logo underneath the watch face. A distributor bought the Omega watches abroad and eventually Costco bought them to sell at a price still lower than what you would pay at an Omega store here in the U.S.
To ensure that Americans pay more for Omegas than people in other parts of the world, Omega sued Costco. That court decided that anything manufactured abroad and authorized only to be sold abroad, not in the U.S., is not subject to the first-sale doctrine in the U.S. The Supreme Court decided to review the Costco v. Omega case back in 2010, but deadlocked at four votes against, four in favor, with Justice Elena Kagan having to sit out the decision because of previous government work on the case.
So, here’s the way it shakes down at the moment. If you buy something that was made in the U.S., then the Doctrine of First-Sale applies and you can resell it however you want. If, however, you bought something outside of the U.S., and it’s not marked for resale in the U.S. (like the books I brought back from Ireland), then under the Omega case, it may be illegal to sell that item. And the Supreme Court will soon hear arguments and render a decision on whether an item which is manufactured outside the U.S. for sale inside the U.S. falls under the Doctrine of First-Sale, or if subsequent sales are copyright-protected.
If the Supreme Court decides “yes, reselling foreign-made objects is illegal,” then you will not control your property (because, let’s face it, almost nothing is made in America anymore); the original copyright holder will control their physical property in perpetuity. Rather than owning a book or an iPad or a television set, it will merely be leased to you. If you no longer want the item, you will have to give it back to the copyright owner; you will not be able to sell it to someone else.
And given that copyright law applies even when things are not sold (it’s illegal to make copies of my book and give them away–even if you make no profit or lose money on the transaction), it would probably be illegal for you to give your child your old iPhone when you upgrade. Giving your kids’ used clothes to your sister’s kids (or Goodwill) might also be illegal. And what about cars? While almost all cars are manufactured in the U.S., many of the parts are not. If a majority of a car’s parts are foreign, will the non-American copyright rule apply to it, even if it’s assembled in America? (If that sounds far-fetched, think again; such a law already applies to certain types of guns.)
Not only does this law take away your rights to own damn-near everything, but it will also be the final death-knell for American manufacturing because everyone’s going to want to manufacture their things overseas so they can take full advantage of this law. Apple and Sony and other manufacturers of high-end consumer items are going to love having your ship your old iPad and blue-ray DVD player back to them so they can turn around and sell it used and reap the profits of the used market. I’m sure they’ll offer trade-in credits to you, so it will be presented as a plus. “Send us your old gadget and get $50 credit towards the purchase of your next gadget!” What they fail to mention is that if you were legally able to sell it on Craigslist, you could get $75 cash for it.
As a history major, I can’t help but be reminded of the old Golden Triangle profit loop: African slaves to the Caribbean; Caribbean sugar (produced on the backs of said slaves) to the U.S.; U.S. knives, beads, and trinkets back to Africa (to buy more slaves).
And the new Golden Triangle: goods manufactured overseas sold to American consumers; old items collected from American consumers and resold in America; old, old items collected from American consumers and resold in other parts of the world used or for parts recycling.
Not only does this kill manufacturing in America, but as used clothes sales in Africa has shown, it kills local manufacturing in other parts of the world, too. Why should someone in Kenya operate a clothing mill when people there can get used American clothes for cheaper?
Poor people in other countries will manufacture everything we use, then after we get tired of it, it will be sent back to them to be used until it dies. Then it will go into their landfills.
Ugh, it also reminds me of The Hunger Games: outlying areas kept in poverty, capable of producing only one thing, while the bulk of their produce is shipped to one decadent, self-indulgent paradise that does nothing but consume. (This same system also has historical precedence: Rome.)
It’s enough to give you an upset stomach. Now, I must be off to change the copyright notice in my book to specifically says that it follows the Doctrine of First-Sale, so even if it’s not printed in the U.S. (right now it will be, but who knows about the future?), my buyers will have the guaranteed right to sell their copies if they want to.