So you thought you could sell the things you own? Yeah, about that...

[ElboRuum]

According to an appellate court ruling, maybe not freely as an "owned" item, at least if the goods were produced outside of the U.S. I present for your consideration the following article:

http://www.marketwatch.com/story/your-right-to-resell-your-own-stuff-is-in-peril-2012-10-04?pagenumber=1

At issue in Kirtsaeng v. John Wiley & Sons is the first-sale doctrine in copyright law, which allows you to buy and then sell things like electronics, books, artwork and furniture as well as CDs and DVDs, without getting permission from the copyright holder of those products.

Under the doctrine, which the Supreme Court has recognized since 1908, you can resell your stuff without worry because the copyright holder only had control over the first sale.

However, what is being challenged is whether or not foreign made products fall under the auspices of this law. If the appellate court ruling that they are not is upheld, this could have far reaching (and in my humble opinion, tragically silly) effects on what "ownership" actually constitutes.

Now the Supreme Court is going to hear oral arguments on this. The following statements from the article say it best:

Both Ammori and Band worry that a decision in favor of the lower court would lead to some strange, even absurd consequences. For example, it could become an incentive for manufacturers to have everything produced overseas because they would be able to control every resale.

(snip)

In its friend-of-the-court brief, eBay noted that the Second Circuit’s rule “affords copyright owners the ability to control the downstream sales of goods for which they have already been paid.” What’s more, it “allows for significant adverse consequences for trade, e-commerce, secondary markets, small businesses, consumers and jobs in the United States.”

The idea of "ownership" as it is viewed in the U.S. has seen encroachment from parties looking to extend the revenue stream beyond the initial point of sale. Software licensing rather than software ownership, for one example, turns the idea of ownership on its head. It is a statement that just because you pay for a product is not an indication of ownership of that product. Software licensing has advanced the idea of "loanership", where you purchase the "right to use a thing" but only within certain agreed upon parameters where "loanership" can be revoked, and your ability to sell the thing to another can be curtailed or removed.

This decision extends that encroachment to the idea of anything made outside of the U.S. as a legal loophole of the first-sale doctrine which is the linchpin of modern ideas of ownership. 'Once you sell me a thing and I take ownership of that thing it is not yours anymore, therefore you are not owed a dime from my selling it to someone else.'

IMHO this is getting downright silly. If the SCOTUS upholds this decision, the silly will probably cease to be conceptual and become much more material.

[PowerToThePeople]

1. Thanks for OP'ing this, K&R n/t

[sabrina 1]

2. Interesting, so if you buy something it is not really yours to do with what you wish.

I will be surprised if even this SC goes along with that. And if it does, the solution is do not buy anything that is not Made in America and lots of boycotts of foreign made products should already have started.

[ElboRuum]

6. And I think that's just it...

As explained by the article, our manufacturing is in large part so intertwined with overseas manufacturing, what truly is 100% American made anymore? They use cars as the example, where parts are manufactured in a variety of countries and assembled in yet others.

I really don't think that you ever could go 100% American made because, to be frank, there are things we simply don't manufacture, rather relying on importation to satisfy those wants and needs.

Where this gets a little scary is, in this new reality, what if you don't have reasonable knowledge of where something was made, you try to sell it, and end up in violation of whatever thing could end up from this? Is it reasonable to ask a consumer to assume the liability of knowing explicitly whether they have the right to sell something they own simply on basis of that product's manufacturing origin?

[leftstreet]

3. Strange this isn't being settled in lower court

Bizarre

Thanks for the link

[LiberalAndProud]

4. Is software licensing at issue here?

We've been paying for product for many years that we don't own. You can't buy software and distribute it over an unlimited number of computers, and as far as I know that's always been the case.

[cherokeeprogressive]

7. Yes but if I remove the software from my own computer I can sell it, which is essentially the same

as selling a book. Once I sell it I no longer have it.

[Poll_Blind]

23. Unfortunately, it was ruled that that is copyright infringement: See Vernor v. Autodesk, Inc.

http://en.wikipedia.org/wiki/Vernor_v._Autodesk,_Inc.

"First Sale" doctrine in regards to computer software has been dead for almost two solid years now.

I'm still disgusted with the ruling but there we are.

PB

[cherokeeprogressive]

25. Wow, I stand corrected. Apologies to LiberalAndProud. n/t

[Poll_Blind]

32. I wish to hell you were right, though. Seriously, if "first sale" is being chipped away at...

...then there really aren't a whole lot of nodes between where we are right now and a culture which is licensed almost entirely.

I'm not a copyright expert and I'm certainly not a copyright lawyer but as much as the above sentence might sound like hyperbole, it's actually far closer than you think.

Now what's going to happen in that future is that we will all be criminals and the laws will be selectively enforced. This is actually a position that The Powers That Be (whether you believe in that idea or not) are very fond of. You can already see the real, tangible effect of how this works on YouTube. A video game comes out. Let's say it's an EA game or possibly a Bethesda Softworks game. Someone reviews the game and gives the game a bad review or mods the game in a way the game's creators don't like.

They contact YouTube and get the video pulled for copyright infringement under the pretext that the experience of playing the game is something they actually own, regardless if it's you playing it or not. They "own" the video of you playing it. They "own" that video.

It's a very "interesting" situation.

PB

[Odin2005]

33. So my thrift store is violating the law by selling computer games???

[Poll_Blind]

34. Not violating the law...infringing on copyright. There's a difference. Plus, it really depends...

...on what the license says. Some licenses are nicer than others. BTW, Microsoft is the biggest champion of this line of bullshit thinking with "You didn't buy this copy of Microsoft Office, you licensed it." Started quite a few years ago. Same thing with Autodesk. Both of them are being hounded bigtime by free alternatives. OpenOffice and Blender, respectively- though there may be even more.

PB

[tblue37]

9. Ebooks come to mind. You can't even loan out an ebook for more than 14 days! nt

[SheilaT]

19. Bingo! My first thought upon reading this post

is that everything will be an ebook.

And while on that topic, I am really, really bothered by the way places like Amazon are attempting to persuade everyone that real books no longer exist, and everything is only available electronically.

[HiPointDem]

28. me too. and libraries are joining in that trend, which bothers me no end. when there are no

physical 'books' (or they are rare exceptions open only to researchers and collectors), people lose their history.

one of the joys of my childhood (50 years ago) was the large collection of bound periodicals my library had, dating back to before the 1900s. i loved to sit on the floor in the stacks and thumb through them. i imagined that they would just go on collecting them -- but they were purged sometime this decade after being kept so long. now they 'purge' (destroy books) regularly. 'purging' is apparently recommended by the library wonks if books aren't checked out enough.

so we have lots of copies of popular trash, few copies of classics or research material.

[SheilaT]

30. In a college library in 1979 I discovered bound issues

of old Life Magazine going back to the very first issue in November of 1936. I started reading them sequentially, and it was the single most educational think I have ever done, and I've been taking college classes on and off since I first graduated high school in 1965.

All of the old Lifes have been scanned and they are available to read on-line. However, it is not fun to do so, because Life was a large-format magazine, and so one page does not fit on a computer screen so that you can read it. In addition, many of their photos were spread across two pages. Yep, in the on-line version you get to look at one half of the picture, and then the other half. Really has the desired impact.

[ElboRuum]

11. Well, that was the point of the encroachment on ownership I was using as an example.

Once upon a time, the concept of buying the rights to use something but not own it (licensing) had to do with reuse or inclusion of prior art within another work, technology, et al. to produce another product. This usually was a large one-time fee for use or a royalty-based model. Licensing as later adopted by the software industry extended the idea of licensing to include the end-user of a product. This is a relatively new concept in "ownership", its popularity dating only as far back as nascent Microsoft (Bill Gates was one of the first to adopt a licensing rather than ownership model in software distributed to so-called "end-users&quot .

[PowerToThePeople]

12. The case is about a physical item. n/t

[LiberalAndProud]

14. I'm truly confused.

Furniture isn't copyrighted, but the article refers to copyright holders and grandma's antique furniture. I'm really having a hard time digesting this.

[TeamPooka]

21. furniture designs are copywritten, hence legally so is the furniture.

[Skidmore]

5. So who would police this?

Sometimes copyright law is just ridiculous. Perhaps we should all copyright our every utterance. Let's shut the world down. Aren't we all entitled to endlessly profit from the creations of our own minds?

[ElboRuum]

8. That's one of the bits of silly that I thought might flow out of upholding this...

Just the relative unenforceability of the claims that might be made. However, litigation would likely proliferate on the part of those trying to collect on their "due".

[LiberalAndProud]

10. If it's upheld, can you give your old software away?

I have no confidence that our current SCOTUS will see the problem with the appellate court ruling.

[ElboRuum]

13. Depends on what a claimant could ask for in payment...

If a claimant can only accept a percentage of the sale, then any percentage of a sale of zero dollars is zero dollars, so in that case I suppose you could. HOWEVER, you'd have to check the EULA to see if selling/giving away the "license" you hold on the software is allowable under the law.

OTOH, if a fee model is possible, giving away the software might require you to PAY the license holder something for a sale they won't personally benefit from.

[Hydra]

15. They'll figure out something

File sharing/piracy wasn't illegal at one point if there was no money changing hands. Once they figured that out, then it was marked as a "loss" to the person with the copyright, and a dollar figure was added to the "money it was costing all of us."

I prefer to go off of what result they want. They want us to rent things from them rather than buy them, but at the same prices as buying, so all of the policies and wording will go from there.

[Posteritatis]

16. It depends on how absurd a given license is

Most of them forbid sale, some forbid even giving something away.

There's some software that forbids even reinstalling a program if you, e.g., replace your computer.

Licensing laws these days are a complete trainwreck, and are only going to get worse for awhile until someone pisses off the right court. Between the attacks on first-sale doctrine, attempts to claw things back from the public domain, and similar silliness, it's not going to be a fun time in IP law terms for awhile.

[SheilaT]

20. Back in the early 1990's, when I had my first computer,

there were some games that you needed to uninstall if you did a clean-up of your hard drive. Otherwise, that game would disappear and the thing you'd downloaded from wouldn't download a second time unless the game had been put back on their disk or whatever it was back then.

I quickly stopped buying games that did that.

[HiPointDem]

29. with bar codes and such, the technology to police it is being set in place, i imagine.

maybe you'll have to pay a regular licensing fee to continue to use your furniture. and if you don't pay, someone will come to investigate where it's gone to.

second-hand sales represent a source of under-the-table income & cannot be allowed to continue. the masters must get their cut of all business activity, and that means *all*.

people should not be able to survive outside the gentle arms of the corporate state.

thus the impulse to patent, license, copyright everything -- for centuries -- including seeds and life itself.

[AnnaLee]

17. Then it's not your problem to dispose of their possessions

So send your used femine products, condoms, plastic packaging, etc. back to the "owners" to dispose of according to their local laws.

I'll let you know later if I can come up with away to send used pills back to the pharmacy that owns the patent.

[ElboRuum]

18. More of that quantum weirdness in what you just said...

Disposal presents another interesting wrinkle...

If you put a product out on your front walk for pickup by the trash hauler, and one of your neighbors says "ooh, I could use that" and walks off with it, could you be liable for paying a fee for "resale" since another person is making use of the product without paying the original manufacturer?

[KT2000]

22. Happening with fabrics too

Now, some fabrics have a notation that the fabric is licensed so that a person who sews something and sells it would have to get permission from the holder of the license and they would likely take a cut. A woman selling things she sewed on a site like eBay was taken to court by the person(s) holding the license on the fabric. So far the court has found that the license holder's interests end after the first sale.
Now that so much of the fabric is made in China - it will be interesting to see what happens with this case.

[Generic Other]

24. So will I be arrested if I destroy "their" crap?

Get a DMCA takedown for wearing hand-me-downs? Burn that Koran Pastor Wackadoo, go to jail. Don't even think of parting out that Honda.

I have taken loanership of your product? I suppose if I wreck your product, I will have to pay damages to you?

They can't be serious.

[McCamy Taylor]

26. Anyone who sells second hand would close down.

Like Salvation Army and Goodwill---since so many clothes are made overseas.

[HiPointDem]

27. In the dawn of the tech age I remember reading something that spoke to this. It was

generally about a new business model that was coming, in which corporations would control everything through constructs like patent law, intellectual property law, etc; in which consumer goods would not be owned by consumers, but more or less 'rented' from them and not 'owned' like books & cars were (able to be loaned, bought & sold second hand)...

at the time it seemed a bit out there. in retrospect, from what i can remember of it, it suggests that this was all planned long ago.

i wish i could find it again.

[Spitfire of ATJ]

31. LOL!!!! I know someone trying to sell their Honda.

[Marthe48]

35. It's not just software, it's theoretically everything

I just read this in Kovels' Antiques eletter. eBay weighed in as a friend of the court--a ruling supporting the lower court would destroy the secondary market, like antiques, collectibles, thrifts stores, yard sales, as well as online sales such as eBay and Craiglist. It would be like we are renting all the stuff we use, and would make it essentially worthless. I've been collecting antiques since I was 8 years old and buying or selling since I was a teenager. If I can't update my collection, it'll knock out a huge part of my life.