Tuesday, October 9, 2012

Your Right to Sell Your Stuff is NOT in Peril

Often, a legal case will come up that seems to have implications far beyond its own scope. Usually, it doesn't.

Welcome to Kirtsaeng V John Wiley & Sons, a case on the current Supreme Court docket, reported by Jennifer Waters’ Consumer Confidential. Much of the writing on the internet about this is overwrought. For example, here and here, some of whom just parrot the headline without analysis. On the other hand, there are usually some calmer voices, such as here and here. ONE BIG HINT: When it's a supreme court question, you should first review volokh and scotusblog

"Your right to sell your stuff is in Peril!" the Internet voices scream.

No, it is not.

This case will not affect your ability to resell your used iPad.

Understand this - Supap Kirtsaeng, the defendant in the underlying case, wasn't selling one personal copy of a used book. He was in the business of importing large numbers of a foreign edition of a company's product and using these unauthorized imports to compete head-to-head with the company's domestic version of the same product. Kirtsaeng made $1.2 Million in profit from these "grey-market" import sales.


I can't tell, yet. Based on the fact that he lost in the lower courts, the current posture of the case says that it presumably was not. On the other hand, the facts as reported on several sites lead me to believe that it probably was legal. Or should have been.

The question of whether his actions constituted a crime or a tort depends upon several factors. Primarily, it depends upon

  1. Under what contractual conditions the books were produced in the foreign country, and
  2. Whether the foreign manufacturer was complicit in the arrival of the books in the US, and
  3. Whether any enforceable legal limitations existed on the use of the foreign books in the US, after their initial sale elsewhere, and
  4. How Kirtsaeng represented the books when he sold them in the US.
So, what were the facts in this case, and how do they relate to an accusation of copyright infringement?

See Part 2, tomorrow. Oh, and speaking of copyright infringement, I saw dozens of sites out there of people who cut and pasted most of Jennifer Waters’ Consumer Confidential piece. Definitely way beyond fair use, IMHO.

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