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Upholding the first sale doctrine

Upholding the first sale doctrine

Posted Mar 22, 2013 0:20 UTC (Fri) by giraffedata (subscriber, #1954)
In reply to: Upholding the first sale doctrine by Aliasundercover
Parent article: Upholding the first sale doctrine

Only 3 votes for utter insanity ...

Remember that the job of a Supreme Court Justice is not to decide what is sane (or what you really meant -- what is right). It's to decide what the law is.

The fact that Wiley's lawyers, a district court, an appeals court, and 3 Supreme Court Justices thought First Sale doesn't apply to foreign-made copies tells me there is probably some clearly written statute or binding precedent somewhere that says that, the US Congress was happy with it, and 6 justices bent over backward to interpret it as not meaning what it seems to. I wouldn't necessarily cheer them on for that.

I'm just saying a court's job is a lot harder than just deciding what the world should be like.


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Upholding the first sale doctrine

Posted Mar 22, 2013 1:56 UTC (Fri) by Aliasundercover (subscriber, #69009) [Link]

I believed that once upon a time, before I started reading court opinions.

Upholding the first sale doctrine

Posted Mar 22, 2013 9:12 UTC (Fri) by dvdeug (subscriber, #10998) [Link]

The decision is linked at the top of the page; I don't see any twisting in its argument that the First Sale Doctrine is not geographically limited.

Upholding the first sale doctrine

Posted Mar 22, 2013 15:40 UTC (Fri) by giraffedata (subscriber, #1954) [Link]

I don't have time to read the decision (note that it took 33 pages for the court majority to explain why First Sale does apply to foreign-made copies; a concurring judge spent 4 more pages saying First Sale does apply, but for a different reason, and the minority took 33 pages to explain why First Sale doesn't apply. So it does not seem like a trivially obvious result that one of us could just criticize off-hand), but I read the first page and this is the argument that First Sale does not apply to foreign-made copies:

Rights to prevent copying come from the US copyright statute. That statute says those rights don't cover simply transferring ownership of a copy made "lawfully under this title." (That is the First Sale doctrine). The US copyright statute has nothing to do with copies made in Thailand; it cannot be said that those copies were made "under this title," ergo the First Sale limitation to copyright does not apply.

Obviously, the other way to look at it is that the copies made in Thailand did not violate the US copyright statute, so they were lawful under that statute.

So it takes 33 pages to delve deeper into it, look at the rest of the title, previous decisions, history of the law, etc. to figure out which version Congress meant. Going only on the LWN article and the first page of the decision, I wouldn't even venture to guess.

Upholding the first sale doctrine

Posted Mar 22, 2013 18:02 UTC (Fri) by Aliasundercover (subscriber, #69009) [Link]

So, numbers of pages should convince us these are hard questions of legal interpretation being handled by justices scrupulous in their duty to interpret Congressional intent without their own political bias?

Find the time to read the documents and risk raising your own cynicism. Or don't and preserve your bliss. Pages mean nothing.

Upholding the first sale doctrine

Posted Mar 23, 2013 9:42 UTC (Sat) by dvdeug (subscriber, #10998) [Link]

I know that some Supreme Court decisions aren't based on good law. This one seems to be, and your arguments against that doesn't seem to be based on anything written in the documents.

Cynicism hides reality at least as badly as any other simplistic philosophy. If you're not interesting in taking reality as she is, at least don't harass those of us who are trying.

Upholding the first sale doctrine

Posted Mar 24, 2013 11:52 UTC (Sun) by kleptog (subscriber, #1183) [Link]

The most interesting part I found was from I think the concurring judge which stated that market segmentation is not a right but neither is it explicitly forbidden, simply that neutering the first-sale doctrine was not the right way to do it.

He suggested that the supreme court had erred in a previous related case where if that had gone the other way market segmentation would have been possible without neutering the first-sale doctrine.

As usual, the ball is really with the legislature to fix the law so that it says what they intended, rather than having judges try to guess.

Upholding the first sale doctrine

Posted Mar 26, 2013 0:31 UTC (Tue) by nix (subscriber, #2304) [Link]

As usual, the ball is really with the legislature to fix the law so that it says what they intended, rather than having judges try to guess.
But that requires legislators to read the laws before they pass them, rather than just taking whatever the lobbyists wrote and jamming it through on a $PARTY ticket. (This is not universal, but is depressingly common in both the US and EU.)

Upholding the first sale doctrine

Posted Mar 28, 2013 16:46 UTC (Thu) by Wol (guest, #4433) [Link]

And which is why the UK government is intent on neutering the House of Lords.

Jealousy is a terrible reason for doing things, and one thing our unelected House did very well - precisely *because* they were unelected - was to go through legislation with a toothcomb and make sure that it was reasonable legislation.

Once we've lost it, I doubt we'll get it back ...

Cheers,
Wol

Upholding the first sale doctrine

Posted Mar 28, 2013 17:04 UTC (Thu) by BlueLightning (subscriber, #38978) [Link]

Apart from those of the unelected who were offering legislation for a price, that is (and those were just the ones that got caught)...

Upholding the first sale doctrine

Posted Mar 31, 2013 11:40 UTC (Sun) by wtanksleyjr (subscriber, #74601) [Link]

> a copy made "lawfully under this title."

As far as I can tell, that was the heart of the publisher's case. And it's enormously silly. Yes, that's the text -- but what did the text mean? That is, what exactly is being EXCLUDED? What isn't allowed to be resold without permission? The answer is simple -- it's _illegally produced_ copies.

Upholding the first sale doctrine

Posted Apr 2, 2013 2:58 UTC (Tue) by giraffedata (subscriber, #1954) [Link]

The answer is simple -- it's _illegally produced_ copies.

And that was the heart of the importer's case.

For the people who know a lot more about copyright than we do, the answer was not simple. Multiple learned judges came to the opposite answer, and were able to back it up with thousands of words of explanation. Other learned judges arrived at the same answer as you, but respected the alternative logic enough to take thousands of words to explain why their own logic beats it.

Though I didn't read the arguments, it is not hard for me to believe that Congress might have meant to exclude some legally produced copies from that paragraph. If Congress really meant something that simple, why didn't Congress just say it? Why write about a copy made "lawfully under this title" instead of just "lawfully"?

I haven't seen this particular phrasing before, but I have seen lots of statutes that talk about things done "under this section" that incontrovertibly refer to the things that are made legal by operation of that particular section, and not by anything else.

Upholding the first sale doctrine

Posted Apr 2, 2013 11:44 UTC (Tue) by hummassa (subscriber, #307) [Link]

> Why write about a copy made "lawfully under this title" instead of just "lawfully"?

There is a principle in how to interpret the law that says (translated from my native Portuguese) "no comma is wasted in the law text". This principle, alone, is enough to justify interpreting "lawfully under this title" from "lawfully", where the latter should mean "under the effect of any law source" and the former, "under the effects described in this specific title only".

IANAL, TINLA, just a former paralegal.

Upholding the first sale doctrine

Posted Apr 2, 2013 16:25 UTC (Tue) by giraffedata (subscriber, #1954) [Link]

I don't know an aphorism for it in US law, but the same concept exists. All words must be given meaning. It produces some results that are maddening for a mathematician, like: a lease contract says all payments under the lease must be paid by the 5th of the month. In another section, it says utility payments must be made by the 15th of the month. To a mathematician, these two statements are consistent and mean that utility payments must be made by the 5th of the month. But a judge would read the utility payments to be an exception, because otherwise the words about the 15th would be superfluous.


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