
Your right to resell your own stuff is in peril - DanielBMarkham
http://www.marketwatch.com/story/your-right-to-resell-your-own-stuff-is-in-peril-2012-10-04?pagenumber=1
======
nekojima
It most definitely isn't enforceable, but for the last five years when I have
bought something of value that I might want to resell or infringe in someway
on copyright, I have emailed or mailed the company a two paragraph letter. I
include a line that roughly says 'This letter is valid even if you don't read
it, as it has been received by your company & that's your responsibility'. As
well as 'the letter supercedes your T&C and any amendments I make with or
without due notice.' Its much like the actions they take. I also mention that
if they don't agree with it, they can provide a full and complete refund
including shipping, and I will return the item.

Out of fifty-odd companies in five years, only two have replied. Well three,
but the third was in Japanese and they asked me to write in Japanese not in
English. The other two companies said my letter wasn't valid and they wouldn't
refund me. I replied that since they didn't accept my terms as a customer, I
didn't accept their terms as a company (the terms of which I couldn't read
until the item was bought and opened). No further response was received by me.

Its a fun experiment to see how many companies reply and how. Wish more took
the time, but having worked before in customer service (with very highly
ranked teams), I know my letter will either be overlooked, misfiled or
misplaced by those that don't necessarily understand or care all that much. I
would have loved to have received a letter like that when I was in CS, it
would have been a challenge and pleasure to reply. But I know my managers
would have dreaded it and it would have been ignored, so as not to cause any
problems for themselves.

~~~
coderdude
You have a limited amount of time to assist a customer and move onto the next
so spending any time whatsoever on "challenging" customers is an enormous
waste of time. This reminds me of the guy who wrote about how he always buys
two of everything from Amazon and the one that comes first is the one he keeps
(or some other such nonsense).

I understand that you want to get something out of this experiment. A
confrontation? I don't know. From what you've said ("out of fifty-odd
companies in five years...") and how you reply to them you're essentially
determined to try to become a problem for someone, _anyone_. Have you
considered that this might be a mildly sadistic behavior?

~~~
Dylan16807
It's an extremely minor revenge for the companies doing something morally
wrong. You're reading too much into it.

------
reneherse
According to the article, the case stems from a college student who created a
business by having his family buy college textbooks in his native Thailand
where the publishers sell them at a substantial discount, then reselling them
on ebay here in the US. Textbook publisher Wiley sued; it was then that the
defendant invoked the "first sale" doctrine.

Oh the irony. Can someone just disrupt these folks out of existence already?

~~~
nekojima
I bought those books when I lived in Asia. The savings are huge, upwards of
80%. On the cover it does say "Not for Resale in North America & Europe" or
"Not for Resale outside of (country)" on the cover. One note though, these
books are usually an "international" edition which excludes some of the
content usually found in the North American & European editions, including
STEM subjects, which I initially found rather surprising.

When I first saw these editions more than ten years ago I had the same
thought, of setting up a website and selling to North America and Europe. The
main issues were finding sufficient supply (university libraries only order a
certain amount for their own students) and that the editions were different.
That can make a difference for some subjects and for the assignments.

~~~
gambiting
the "not for resale" note on the cover is completely meaningless. They could
also say "if you open this book you owe us 1 billion dollars" and the effect
would also be the same - it would have zero ground to stand on in court.

~~~
rprasad
Actually, when it comes to sales across borders, "Not for Resale Outside of [X
country or region" has legal effect in every country that respects copyright.

First-sale doctrine is a uniquely American idea; it only applies to (first)
sales subject to the jurisdiction of American courts. I.e., it would apply to
a sale by Amazon to some dude in Japan and to a sale by Amazon JP to some guy
in California, but not to a sale by Amazon KOR to some guy in China, who then
resells into the U.S.

~~~
sjmulder
Of course the US laws on copyright only apply to the US, but the idea behind
the first-sale doctrine exists elsewhere. I just looked up the Dutch rules[1],
and it turns out it’s very much the same. When a work is sold, the copyrights
are “exhausted” and can no longer be invoked for that copy.

1:
[http://www.iusmentis.com/auteursrecht/spoedcursus/beperkinge...](http://www.iusmentis.com/auteursrecht/spoedcursus/beperkingen/)
(Dutch)

~~~
wtallis
While it appears from your link that the Netherlands may have something
similar to first-sale doctrine, many European countries have the exact
opposite, _droit de suite_ , which allows for the original author (or their
estate) to exercise control over any sale, not just the first.

~~~
ohashi
What is the argument in favor of that?

~~~
Terretta
So that when an artist sells a painting for $10 that gets resold for $100
million, the artist can realize some of the true value of the work they
produced.

~~~
ohashi
Why should they though? They thought it was worth $10. Why is their pricing
mistake rewarded?

~~~
Terretta
Appreciation.

------
falien
>That’s being challenged now for products that are made abroad and if the
Supreme Court upholds an appellate court ruling it would mean that the
copyright holders of anything you own that has been made in China, Japan or
Europe, for example, would have to give you permission to sell it.

That ruling. I don't think it says what you think it says.

I wish I could say this was some of the worst reporting I've ever seen, but
alas.

edit: for anyone who wants to read it <http://caselaw.findlaw.com/us-2nd-
circuit/1577369.html>

~~~
gergles
Could you enlighten the audience as to what you believe it says, rather than
snarkily just dismissing the reporting as wrong?

~~~
jeremyjh
Maybe just read what it says? Third paragraph "“[i]mportation into the United
States, without the authority of the owner of copyright under [the Copyright
Act], of copies ․ of a work that have been acquired outside the United States
is an infringement of the [owner's] exclusive right to distribute copies․”4

How is that ever going to apply to an iPhone - or to ANYTHING sold through an
authorized distributor?

~~~
westicle
Hi.

I'm in Australia, I buy my iPhone from an authorised distributor. I then
decide to update to an iPhone 2, so I list it on eBay. Someone in the United
States purchases the iPhone.

Do I have the authority of Apple to import that phone to the United States? In
the absence of explicit terms and conditions, wouldn't this judgment prevent
me from delivering the phone?

------
tzs
The article is greatly exaggerating the potential scope of this. The
underlying case involved reselling books that were imported without
authorization of the copyright holder. When you buy an iPhone, it was NOT
imported without authorization of the copyright holder. That's a huge
difference.

~~~
dwc
Once you buy something, why would you need the original seller's permission to
import it? I find myself personally concerned: I am studying Japanese and
there is a paucity of media (books, video, et al) available in Japanese in my
country. What might seem reasonable, such as arranging for books to be shipped
from Japan, becomes problematic. And when I outgrow basic books, may I sell
them to another student? These issues are not contrived, and are not limited
to unethical cases. A broad ruling would have potentially harmful effects.

~~~
tzs
I'd guess that in your case, you'd be buying Japanese materials from Japanese
publishers, and then having them shipped (possibly by the publisher
themselves) to your country, and that these Japanese publishers don't normally
sell their materials in your country.

That would not be a problem. To run into the situation at issue in this case,
you'd have to be importing back to your country books that a publisher in your
country sold in Japan.

The laws restricting imports are generally aimed at curbing grey market goods.
When the good you are importing is one that has no "white market" equivalent
in your country, you are probably OK.

~~~
dwc
I agree that it _should_ work as you describe. But there's always a danger of
courts making a broad ruling. The norm seems to be for content purveyors to
push for a broad ruling, as it's in their business interest.

Edit: the particulars of the case in the article are not so interesting to me,
excepting how it might impact more legitimate uses of 1st sale. I do not
support the defendant's actions.

------
theevocater
A related but important case is:
[http://en.wikipedia.org/wiki/Omega_S.A._v._Costco_Wholesale_...](http://en.wikipedia.org/wiki/Omega_S.A._v._Costco_Wholesale_Corp).

Costco, through another company, would buy watches abroad from authorized
Omega dealers at low prices. Omega, wanting to keep its prices up, sued.
Omega's 9th circuit judgement was upheld 4-4 (Kagen removed herself from the
judgement). A split judgement means precedent is not created, so Kirtsaeng
will help determine precedent as it is a somewhat similar case. (Omega used
trademark protections whereas Kirtsaeng is about copyright.)

Point being, there is a strong possibility that this case will be determined
in favor of Wiley. I think OP's article exaggerates greatly the effects of
such a ruling because supreme court rulings tend to be as narrow as possible.
However we won't know the far reaching effects until the ruling comes.

------
yason
How the hell does that fall under _copyright_?

The "only to be sold in country X" effectively tries to be an agreement in
which geographic locations certain items can be sold. No copies are involved
and no copies are made. Copyright controls, well, the right to make copies.
Reselling shouldn't have anything to do with copyright.

(Note that those warnings that try to be artificial restrictions are deep from
the arse. They deliberately try to prevent the market from working for the
benefit of one company.)

~~~
ubernostrum
Copyright includes the right to decide whether copies will be sold at all.
That right traditionally ends, for any given copy, once that copy has been
sold for the first time, which is the first-sale doctrine.

The quirk in this case is that it's dealing with things which had been legally
sold... but not in the United States, and the doctrine is actually that the
right to control sale of copies ends at the _first authorized sale that occurs
in the United States_ , not at the first sale that occurs anywhere in the
world.

Since the textbooks were purchased elsewhere and then imported, they had not
undergone a first sale in the US, and so US first-sale doctrine had not ended
the copyright holder's right to control sale.

------
aufreak3
If the "Eastern Economy Edition" (EEE) prints of textbooks are similar to the
ones that Kirtsaeng sold on ebay, the books may have a sale restriction based
on region - a clause on the book that says something like "this book may only
be sold <here> and <there>".

Kirtsaeng probably violated that clause ... if it was present. If that was the
case, it may be interpreted as copyright violation, I think, if there is
considerable monetary impact on the copyright owner on account of such a
resale.

The article presents the case as a general assault on resale, but I believe it
may be judged more along the lines of "does such resale prevent the copyright
holder from financially benefiting from the artifact?" If I hold _one_ EEE
copy of a textbook that I sell on ebay, the financial impact to the publisher
is insignificant than if I mass imported EEE copies for sale in the US. Though
the sale act is the same in both these cases, I think only the mass sale may
count as copyright violation. Perhaps I'm dreaming, but it doesn't look like
the general ability of people to sell their stuff second hand (bought
wherever) is likely on the table here at all.

(I'm not a lawyer. Just speculating about what aspects of copyright might be
involved.)

~~~
pbhjpbhj
> _it may be interpreted as copyright violation_ //

This hinges on the "first sale" doctrine and what's called "exhaustion of
rights". The idea is that once you've sold an object under copyright you've
exhausted (ended) your financial rights to that object and so it can be
resold, lent, etc. without your permission.

IMO an attempt to create a regional sale restriction to overload copyright
should be treated with contempt and the copyright should be rescinded.
Copyright is [supposedly] granted by the state on behalf of the
citizens/subjects afterall; such attempts to extend the rightsholders rights
at the expense of the public should be limited.

IIRC cases of this kind in the UK have been challenged under trademark law,
where selling of "grey imports" of Levi jeans - for example - have been
prevented as the producers (or their local agents) have argued successfully
for trademark violation / passing-off.

See <http://en.wikipedia.org/wiki/Parallel_import>

Parallel imports are like off-shoring for consumers.

~~~
Evbn
> Copyright is [supposedly] granted by the state on behalf of the
> citizens/subjects afterall; such attempts to extend the rightsholders rights
> at the expense of the public should be limited.

Note how this argument clearly fails to apply across national borders where
there is no common "state".

~~~
glesica
Yeah, maybe cross-border copyright shouldn't even exist... I don't see
anything in the constitution about enforcing international copyright law
within the United States. And even if it is part of an agreement with another
country, it still can't violate the constitution, so the imported IP laws
still have to encourage creation, right? Or are we not textualists? :-)

Frankly, I don't really care whether it's legal/constitutional or not. I'm
more worried about whether it's a good idea. And if free trade is a good idea,
then I see no problem with what the defendant did.

So Wiley charges more in Thailand, big deal. That just means that the Thai
publishing industry will have more of an advantage.

Markets are (in theory) dynamic all the time, not just when it is convenient
for the big boys.

~~~
pbhjpbhj
> _so the imported IP laws still have to encourage creation_ //

International treaties [arguably] do this by providing access for local
producers of works to an international market. If you're a major media
exporter then gaining protection in other states is going to be a net benefit
even though you have to agree to protect foreign works to do that.

> _if free trade is a good idea, then I see no problem with what the defendant
> did_ //

It's a big "if". Are there any states that truly stand behind free trade?

------
csense
How would this affect your right to give stuff away?

For example, say I bought a car with copyrighted software or logos or whatever
in it. Due to this court ruling on the first sale doctrine, and EULA saying my
license was nontransferable, I wouldn't be able to sell or give it to anyone
else without the copyright holder's permission.

Say I couldn't obtain that permission -- I didn't have enough money, or they
went out of business and nobody was sure who owned the copyright, or it was
simply too complicated for an ordinary person to figure out who owns all the
copyrights to the firmware in all the different microcontrollers -- radio,
engine, steering, antilock brakes, etc. EDIT: Or maybe the copyright holder
simply refused, saying "the rights are not for sale at any price" or saying
"one TRILLION dollars."

Does that then mean that I can't sell the car or give it away either? That I
have to leave it rusting in my yard forever when it stops working, I can't
even give it to a wrecker?

EDIT: Also, any local or state laws against leaving cars to rust in your yard
are now null and void, since getting rid of such cars would require people to
violate federal copyright law. (When there's a conflict like this, I'm pretty
sure the Constitution says federal law wins.)

~~~
danielweber
This doesn't affect any normal person's right to resell their car, unless they
personally arranged for the import of the car against the wishes of the IP
owner of the car.

~~~
CamperBob2
Which has been done frequently in the past with gray-market auto imports.

~~~
Zak
I suspect in most of those cases, the car manufacturer chooses not to import
the car because of regulatory issues or because it doesn't think there's a
large enough market for that type of car in a given country. Car manufacturers
generally don't care about such sales.

The grey market sales various businesses _do_ object to usually have to do
with geographic price segmentation. It doesn't seem ethical to me for
governments to help companies protect that business model.

------
nathan_long
This will never fly, at least not to the extent the article suggests. It would
simultaneously cripple the economy and make everyone an outlaw. It might
actually cause a political uprising. It would be madness.

Some watered-down version that only applies when you buy something solely to
resell it in another market, maybe. I'd still oppose that, though.

~~~
protomyth
The first grandma with some connections they arrest for having a garage sale
will be the end of it.

------
astangl
I'm surprised more people don't take Wiley (and all the other textbook
publishers) to task for their price-gouging ways. Instead of going after the
kid who found a good arbitrage opportunity, maybe they ought to reexamine
their pricing models.

~~~
Evbn
Yeah, when Wiley stops selling discounted editions in Asia, good will have
finally triumphed over evil.

~~~
tzs
I can definitely see why Wiley is concerned. I've seen some editions for Asia
or India that are cheap crap--bad enough that I'd rather buy the US edition
because I like to keep my books and the foreign crap will fall apart after a
couple reads. Sure, many people would buy the cheap editions and put up with
the crap, but a lot of people would avoid them.

The Wiley foreign editions are not like those. When my Wiley copies of
Apostol's "Calculus" volumes I and II started falling apart after 30 years of
being my goto books when I needed to refresh my memory of calculus, I bought
the Indian paperback editions. The pages are a little smaller than the US
hardback and a little lower quality, but the binding is well done, all the
material is there, and they were about $30 each (with shipping) compared to
$200/each for the hardbacks.

If the Wiley Indian editions were readily available in the US, there would be
almost no reason to buy the US edition, at least for textbooks like Apostol,
where there are no color diagrams.

It was interesting that the total price, books + shipping, was about the same
no matter where they were bought from. I could have bought from an India
seller for about $5, with $25 shipping, or from US importers for about $25,
with $5 shipping. I think I did find a couple Indian and Chinese sellers where
I could have saved maybe $5 overall, but no way was I giving my credit card to
a seller on the other side of the world that I could find no reviews of
anywhere online.

BTW, those hardbacks in 1977 cost about the same as the paperbacks 30 years
later. In hindsight, it would have been a good investment in 1977 to buy a
bunch of copies, and resell them 30 years later. (And yes, there would be a
market for them 30 years later. These books, in the same edition I bought in
1977, are still used at Caltech, MIT, and in the "honors" calculus classes at
a few other top schools).

------
skennedy
_In August 2011, the U.S. Court of Appeals for the Second Circuit upheld a
lower court’s ruling that anything that was manufactured overseas is not
subject to the first-sale principle. Only American-made products or “copies
manufactured domestically” were._

It would seem if the sum of foreign made products makes a new product, you
would still need the permission of original manufacturers to resell it. Wonder
if that could be stretched far enough to say foreign food spices at
restaurants can no longer be used.

~~~
greenyoda
This law wouldn't apply to spices since there are no intellectual property
rights involved in that product. (The "prior art" for grinding peppercorns
probably dates back thousands of years.)

A better example might be a car that's manufactured in the U.S. but contains
many parts that are manufactured abroad.

However, even if the courts upheld the lack of a first-sale doctrine on
foreign goods, there would be risks for companies to assert these rights. For
example, if Toyota demanded a cut of every resale of one of their cars, it
would immediately lower the value of any Toyota relative to a U.S.-made car,
since the resale value of a car is a significant part of its total cost of
ownership. If this practice became widespread, the outcry would force Congress
to pass laws to put an end to it (at very little political risk, since the
losers would be in foreign countries).

------
moo
In 2011 Louisiana passed a law prohibiting using cash for selling or buying
used goods.

------
checoivan
Doesn't make much sense to me. What would prevent people from giving away 2
gifts,one of item one of money, or a giving away to a 3rd party as escrows?

~~~
danielweber
As a general matter, judges get fed up with petty shenanigans pretty quick.

------
lunchladydoris
That's not copyright infringement, that's arbitrage.

------
mratzloff
There's approximately a zero percent chance that this appellate ruling will be
upheld.

------
dmorgan
> _Your right to resell your own stuff is in peril_

Or you can see it in a positive light, as:

1) You are free from forever owning lots of stuff (which ends up owning you in
the end, see Hoarders). You just rent stuff.

2) The economy gets a nice boost from people buying the stuff again, instead
of getting it in a re-sale.

~~~
nathan_long
>> The economy gets a nice boost from people buying the stuff again, instead
of getting it in a re-sale.

No, this is not a boost. This is a tremendous, horrible loss of value.

Imagine people throwing away furniture, crushing cars, and burning books
because they can't be sold. This is value being destroyed.

Please read up on the "broken window fallacy." There is a difference between
spending to create value and spending to replace destroyed value. The latter
makes everyone poorer.

~~~
dmorgan
> _Imagine people throwing away furniture, crushing cars, and burning books
> because they can't be sold. This is value being destroyed._

It's "use value" being destroyed, not "economic value".

This is the reason why economies get a huge boost after a war: because stuff
has to be bought again, infrastructures have to be re-built, etc... (the well-
being of the society is taken back, of course, but economy itself, i.e levels
of employment and development rise, because forces before non utilized
(unemployed people, savings, etc) have to be utilized. And the disturbed
status quo brings up opportunities for growth in areas stifled before by
established players.

> _Please read up on the "broken window fallacy."_

I'm not making the same argument.

With a good such as an e-book, if you could read it and then re-sale it, then
there would just be one copy sold by the parent company. If it could be resold
even more, then from one original buyer you could get 10 meta-buyers, all of
them not giving a penny to the author.

(And those are not pirates, in which case you wouldn't know if they would have
bought it if they couldn't get it for free. Those are actual buyers).

So, in essence, the author loses 1/average_resales. That might be good for
other companies and the economy in general (as per the "broken window
fallacy"), but it's not for the PARTICULAR industry under discussion.

Heck, the author might be financially forced to give up writing altogether,
all the while enough people to sustain him _enjoy_ and _pay_ for his book.

~~~
sixbrx
If you're going to consider that the author "looses" a sale because of a
resold, used physical book (which was the original subject, not ebooks), then
you should factor in the losses due to not allowing resales at all \- because
such books are much riskier investments and are less likely to be bought in
the first place, especially if they are technical books with non-trivial
prices. I've convinced myself to buy many a book because I knew I could resell
them easily and legally if I didn't like them.

~~~
Dylanlacey
This is similar to videogames resale (Another area under heavy attack by the
publishing industry).

If a title is middling, but not great, people will still buy it, and hope to
sell it for cash or store credit once "done". They will experiment with games
they're not certain about because they're not "Stuck" with the original.

People who aren't willing to take the risk that the game is worth full price
can then buy the resold version at a lower price later. They take a "Newness"
and time premium, but save money.

If resale isn't possible, fewer people will buy the original game because it's
a riskier proposition. This means both that there are less primary sales, but
ALSO that there are less people discussing the game (They've not played it,
they can't talk about it). People who would have bought the game secondhand,
possibly liked it and been encouraged to buy the next title by the same
developers firsthand simply won't buy it, so there's even LESS word of mouth.

