Friday, October 12, 2012

Your Right to Sell Your Stuff, Day Four

So, if common sense and the statutory construction is so obviously in his favor, why does Kirtsaeng keep losing? Well, it could have something to do with something that was printed on the books.

This book . . . may not be exported. Exportation from or importation of this book to another region without the Publisher's authorization is illegal and is a violation of the Publisher's rights. The Publisher may take legal action to enforce its rights. The Publisher may recover damages and costs, including but not limited to lost profits and attorney's fees, in the event legal action is required.

So, the question is, can you assign a partial copyright approval, such as the above, to a particular copy of a work?

Why, or why not?

Most of the arguments made in the briefs for either side ignore this specific factual item - that there is a clear copyright statement on the book that disallows import out of Asia or into the United States.

For example, the brief by the American Library Association predicts dire consequences by assuming that the rights explicitly claimed by John Wiley & Sons on the printed copies imported by Kirtsaeng would automatically become retroactive and enforceable on copies of works that do not include any such copyright statements, and even those works that predate the enactment of the law!

No, the sky isn't falling. But the Supreme Court has a difficult task. Can they allow the publisher to win, without creating an incentive for manufacturers and other copyright holders to move manufacturing offshore? Can they let Kirtsaeng win, despite the fact that the copies he imported were clearly not intended for import into the US without the express permission of the publisher?

I would hope for the Supreme Court Justices to craft a reasonable and middle of the road opinion, perhaps allowing the publisher to win narrowly on the precise facts of this case, while brushing back all the lower court opinions that pose the interpretation as a general rule.

Another option for a splitting-the-baby would be to state that the import language printed on the book is not strict enough. How would a U.S. buyer of a legally imported book ever know whether the copy he has is legally imported or not? I'd like to see an opinion that says that if a copy of a work is not legal for import to the US, that copy must clearly state that it is not legal for import to the US. That avoids most of the is-it-or-isn't-it problems, and puts the onus on the copyright holder to give fair warning that the one particular copy in question is established to be illegal to have.

Now, let's see what the Supremes do.

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