Entries Matching: First Sale
Something we commonly hear when the United States Trade Representative or others are negotiating "trade" agreements is that, to the extent that these agreements mention other areas of law or policy--such as copyright law--they are "consistent" with it. "Who could object," we are asked, "to simply restating what the law already is?"
The first problem with this is that such agreements don't just restate the law--they can freeze it in place. It is politically more difficult for Congress to pass a law if there's an argument (even a wrong one) that doing so would take us out of "compliance" with a trade agreement. If trade negotiators want to freeze US law in place they should explain that is what they are doing and not frame the issue as a technical one without real consequences.
The Supreme Court's decision in Kirtsaeng today is a big win for the public, for ownership rights, and free trade. In a compellingly-argued 6-3 decision, the Court held that copyright owners do not have a perpetual right to control the resale of goods, even when they are manufactured overseas.
In the wake of the Kirtsaeng oral argument, I wanted to look at a strange thing about how the first sale doctrine works in our copyright laws. The first sale doctrine makes it legal for you to sell, lend, or give away copies of copyrighted works that you own.
I was able to attend oral arguments this morning at the Supreme Court, which included Kirtsaeng v. John Wiley & Sons, Inc. For some background on the case, see the resources linked at this blog post.
There were three separate theories of section 109's interpretation in the Court today: Kirtsaeng's, made by Josh Rosenkranz; Wiley's, made by Ted Olson, and the U.S. Government's made by Deputy Solicitor General Malcolm Stewart. Kirtsaeng's position is that "lawfully made under this title" means "made lawfully," and that to judge what "lawfully" means, we look to the standards of title 17.
Today, the Supreme Court will be hearing arguments in Kirtsaeng v. John Wiley & Sons, Inc., a case that could decide whether or not you fully own your own books, CDs, DVDs, and all your other things that contain copyrighted works—particularly if they were made outside the US.
Recordings of the oral arguments should be posted later in the week. In the meantime, if you’re looking for some background on the case, see Jodie's post here, or read on below.