
Supreme Court sides with student in case over textbooks - nla
http://www.salon.com/2013/03/19/court_sides_with_student_in_case_over_textbooks/singleton/
======
shrikant
I really liked this bit from the decision:

> _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.

~~~
hub_
That's why the content industry pushed for the DMCA and used that in the case
of the DeCSS case: DMCA as a mean to protect market protection like DVD region
encoding.

The problem with physical books is that they can't do it. The know it, the
court knows it.

~~~
spullara
This could definitely accelerate the move to non-resaleable ebooks to the
detriment of students.

~~~
sk5t
It's my hope that people will continue to find, as I do, that reading books on
a screen is a huge handicap to absorbing the material effectively.

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?

~~~
RougeFemme
No, you're not. I spent the past week helping someone with statistics. As she
clicked back-and-forth between her e-book and online homework, I flipped back-
and-forth through her hardcopy book, refreshing my memory and guiding her
through her homework.

------
UnoriginalGuy
The publishers will just make sure to produce a different textbook between
different regions now. Just re-order the chapters a little and re-order some
questions/assignments. So even if someone ships in the foreign book it will be
as useless as a previous edition.

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.

~~~
greenyoda
The worst offenders are the professors who write their own textbooks (even
though there are dozens of better ones already available) and then use them in
their courses, making money off each student. Maybe there should be conflict
of interest rules in universities.

The heroes in this game are the instructors who are creating open-source
textbooks.

~~~
sib
I had a professor who was a co-author on the textbook that we used in his
class. It was the "standard" work in the field, so it would have been
ridiculous to use a different one. Nonetheless, he acknowledged the potential
conflict, gave us an accounting of his earnings per copy (well under a dollar
per), and bought food for the class out of his own pocket. Good solution, I
thought.

~~~
ScottWhigham
I'm upvoting your comment _for_ your professor. Please serve as proxy and go
deliver the upvote to him. He sounds like "good people".

------
antiterra
The case involves textbooks, but it's not really _about_ textbooks. Instead
it's about what "made lawfully under this title" means in the context of
first-sale of physical items.

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.

~~~
roc
> _"I have no idea what they will do."_

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.

~~~
tanzam75
> _Maybe lobby for higher duties (as compared to tariff rates)._

Not sure I see the distinction. According to the WTO, "customs duties on
merchandise imports are called tariffs."

~~~
roc
I think the point would be to codify a distinction and change (increase) rates
on customs duties accordingly.

------
andrewpi
SCOTUSblog analysis: [http://www.scotusblog.com/2013/03/opinion-analysis-
justices-...](http://www.scotusblog.com/2013/03/opinion-analysis-justices-
reject-publishers-claims-in-gray-market-copyright-case/)

~~~
ISL
Grouping useful stuff together:

The opinion itself:
<http://www.supremecourt.gov/opinions/12pdf/11-697_d1o2.pdf>

The dissent is perhaps most interesting.

~~~
CamperBob2
I just love circular reasoning like Ginsberg's. "We should decide this case in
Wiley's favor because it's the official policy of the United States to support
similar provisions in international agreements." Then, when it's time to
negotiate the next ACTA framework or WIPO treaty, we'll fall back to, "Hey, US
law works this way, and look how successful it's been for us. Wouldn't the
rest of you benighted nations like to enjoy the fruits of our maximalist
copyright regime as well?"

------
jug6ernaut
Honestly I don't know how i feel about this. As a recent grad i know full well
how high prices are for text books, i would do everything possible to prevent
having to buy them.

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.

~~~
HarryHirsch
Publishers are merely exploiting the highly school-like nature of university
education in the US. When I was in university, over in Europe, a long time
ago, on the first day of lectures the professors would wheel in a cart of
textbooks, saying these are suitable texts, go and pick the one that suits you
best.

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.

~~~
thedufer
> students demand

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?

~~~
saraid216
Effectively, it was an era before your generation.

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.

------
kbutler
This will push textbooks more heavily toward digital distribution, where the
content will be "licensed" to an individual user, without resale rights.

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.

~~~
dublinben
The only saving grace of digital distribution of textbooks is that it (often)
allows easier pirating. The availability of inexpensive used textbooks is less
crucial if free PDFs are available.

~~~
dubya
The publishers are already pushing bundled grading systems with their
textbook. You get the textbook and also a login key so you can submit homework
and quizzes online. I don't know how widespread it is yet, but I suspect many
service courses at state schools will adopt it soon.

~~~
khuey
It's getting more and more popular for intro level courses. It's an easy way
to shift more of the cost of running the course off of the university (or the
state) and onto the students because you need fewer TAs/grading assistants.

------
jared314
I'm not sure why so few people link to the real content.

Oral Argument recordings:

[http://www.supremecourt.gov/oral_arguments/argument_audio_de...](http://www.supremecourt.gov/oral_arguments/argument_audio_detail.aspx?argument=11-697)

Opinions:

<http://www.supremecourt.gov/opinions/12pdf/11-697_d1o2.pdf>

------
DoubleMalt
It is hard to overestimate the importance of this decision.

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.

~~~
binarycrusader
The supreme court does not "side with" any particular party (ideally); they
"side with" a specific interpretation of the law.

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.

~~~
DannyBee
Actually, at least 2 justices specifically do _not_ determine congress's
intent, because they do not believe it matters.

If you look, you'll see they often specifically refuse to join in
footnotes/etc that cite congressional intent or history.

~~~
SEMW
It's possible they're still trying to determine congress's intent in a sense,
they just give a more objective meaning to 'intent': i.e. what a reasonable
person reading the statute would think that congress meant by the words they
used. (As opposed to what they actually, subjectively meant, per extrinsic
evidence like statements made in congress).

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.]_ )

~~~
DannyBee
Speaking as a lawyer familiar with both english and US law:

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...](http://www.claremontmckenna.edu/salvatori/publications/RARScalia.asp)
and
[http://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=...](http://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=3109&context=dlj)
are fairly good descriptions of his approach

~~~
SEMW
Interesting. I'm surprised that US contract law would differ from English in
such a fundamental way. Thanks for the explanations, on that and on Scalia's
approach.

~~~
DannyBee
Contracts(well, consumer sales, anyway) in the US is done by Uniform
Commercial Code. Basically, model legislation that was adopted by all states.

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)

------
pc86
I'm glad, obviously. You should be able to do whatever you want with something
after you purchase it.

But it just makes me sad this had to get to the _Supreme Court._

~~~
gameshot911
Honest question: What if the good was only sold to you with a particular
assumption? For example, if a phone company sells me a smartphone with the
agreement that I do not unlock the phone, should I still be able to do
whatever I want with the phone (unlock it) after it is in my possession?

~~~
coldpie
> What if the good was only sold to you with a particular assumption?

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?

------
chaddeshon
It is great that students will be able to get cheap text books. But, are we
not concerned that the court seems to be throwing out a law passed by Congress
in an area where the Constitution grants them explicit power to act merely
because they think the law is a bad idea?

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.”

~~~
SEMW
Having briefly skimmed the Opinion[1] (IANYAL), the heart of it was an
exercise of close statutory interpretation to try and figure out exactly how
s. 602 interacts with s. 109, with the majority concluding that as s. 602
refers explicitly to the s. 106 exclusive distribution right, it's subject to
the same limitations as s. 106 is, including s. 109's First Sale limitation.
(So s. 602 then just has the effect that the act importing an unauthorised
copy into the US is an infringement of copyright). _[Edit: My mistake - that
finding was actually unanimous. The 3 dissents were only dissenting on the
interpretation of "lawfully made under this title" in s. 109]_

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>

~~~
chaddeshon
Thanks for that explanation. I hadn't had time to read the whole opinion.
Perhaps my statement came off too harsh. I am nothing close to a lawyer, but I
found the "parade of horribles" to be a little troubling. Shouldn't the
Congress be the one evaluating the consequences on the law? I guess the
counterargument is that those things are so horrible that we can assume that
isn't what Congress meant.

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.

~~~
pdonis
What always strikes me when reading Court opinions is, first, that there are
well reasoned, logical arguments that support _both sides_ ; and second, that
in almost every case where I've seen a marked difference in the quality of the
arguments (this case is _not_ one of them, btw--both sides' arguments seem to
me to be well reasoned and logical, it basically comes down to a judgment call
about interpretation and what Congress intended), the argument I've found to
be stronger has been the _dissenting_ one. In other words, it seems to me
that, when push comes to shove, the Justices aren't as good at arguing for
what the Court actually did, as they are at arguing for why the Court should
have done something else.

~~~
chaddeshon
I've noticed that as well. I think it is because whoever is writing the
majority opinion has to temper the opinion to make it agreeable to a majority
of the justices. Authors of minority opinions have no such restriction and can
swing with full force.

~~~
pdonis
That's a good point; in fact, it's even stronger in a way, because the
majority opinion is the "official" one that becomes effectively law, so it not
only has to be agreeable to a majority of the justices, it has to be agreeable
enough to become part of the law of the land indefinitely.

------
nitrogen
It's interesting that the Omega watch case had a 4-4 tie in the SC while this
decision was 6-3. Does this mean that Costco can start importing cheap watches
again?

[https://en.wikipedia.org/wiki/Omega_S.A._v._Costco_Wholesale...](https://en.wikipedia.org/wiki/Omega_S.A._v._Costco_Wholesale_Corp.#Supreme_Court_case)

~~~
WildUtah
Costco won in district court on remand. The theory was that even if it was
infringing copyright, using copyright to block physical goods was an abuse of
copyright.

So Costco still won in the end.

Omega was appealing the decision last I heard.

Cr_ppy Omega watches are overpriced anyway.

~~~
khuey
Seems like this precedent should make Omega's appeal that much harder.

------
ChrisNorstrom
Am I the only one that disagrees with the decision? Correct me if I'm wrong:

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.

~~~
jeffdavis
"Am I the only one that disagrees with the decision? ... we need to look at
the RESULT of the decision"

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.

------
protomyth
If you listen to the oral arguments
[http://www.supremecourt.gov/oral_arguments/argument_audio_de...](http://www.supremecourt.gov/oral_arguments/argument_audio_detail.aspx?argument=11-697)
, I get the feeling the resale of cars weighed a bit on decision:

"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."

------
pflats
I'm not a huge international policy wonk, but I don't get how these suits
(this one and Omega vs. Costco) reconcile with the rules of the WTO (of which
the US and Thailand are charter members).

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.)

------
arikrak
This is good news. Publishers charge US students much more than students in
other (even high-income) countries. At least they shouldn't be able to legally
prevent people from buying international edition books. The publishers often
change the questions in those books, but there are ways to deal with this.

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.

------
isb
Why can't they apply similar interpretation to legalize re-importation of
drugs? The arguments there are similar ( "drugs are expensive in US to
subsidize foreign markets").

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.

------
socalnate1
This is fantastic news. Had the court ruled differently, the first sale
doctrine would have been in doubt, which could have destroyed ebay,
craigslist, garage sales and nearly anything that involves reselling a good.

------
jivatmanx
Excellent for the native textbook industries of these countries.

~~~
sageikosa
But not necessarily for the students in those countries. Presumably low-cost
and market-recognized quality are factors that have kept American textbooks in
distribution in foreign markets (and domestic producers out of those markets).
In their absence, one might think that prices will rise, quality will fall, or
both; at least in the short run.

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.

~~~
mjmahone17
Alternatively, it's possible the American publishers wer effectively "dumping"
their textbooks to prevent international publishers from ever being able to
establish themselves.

~~~
sageikosa
Always a possibility. Though that wouldn't change the short term effect on
students, since the "dumping" did have the effect of lower prices for them.

------
brownbat
Roberts and Sotomayor on one side, Scalia and Ginsburg on the other. Not
really a right/left split.

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.

------
smsm42
I feel glad and sad in the same time. Glad because first sale doctrine
survived, and sad because it could very well not. The whole matter that first
sale doctrine disappears as soon as you cross borders sounds ridiculous - the
practice of manufacturing goods cheaply at one place and sell them in another
is an extremely common practice, and there's absolutely zero reason for books
to be except from it.

------
auctiontheory
In the bookstore of my local community college, I saw the required intro
calculus text selling for around $140. That is wrong in so many ways.

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.

------
qwertzlcoatl
Small victories are victories none the less.

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.

