There's far deeper issues at play here than your approach to the subject, Moore. This rubs right up against the fundamentals of First Sale Doctrine with imported goods and creates a slippery slope situation. If the ruling is upheld as it stands, then technically
all imported foreign copyrighted materials are now subject to licensing restrictions. It doesn't matter that the major publishers or the MPAA or RIAA cross their hearts and hope to die promising to never enforce it... it's the fact that it's enforceable at all, and would have to stand as the gold standard across all markets where copyright is used and could be pressed in.
Something that makes this decision potentially dangerous is the case
Costco v. Omega, which has effectively stood unchallenged due to a 4-4 split decision with Justice Kagan unable to split the decision due to direct prior involvement in the proceedings. The problem is, Omega officially got away with abusing and subverting copyright law as grounds for halting the sale of their gray market watches at Costco that were being offered below their regional asking value. They effectively abused copyright law with a physical good, used international copyright law to halt the resale of their own physical merchandise, and the SCOTUS failed to strike it down. Effectively, this stands as grounds to be able to copyright any physical good being imported into the country.
Justice Breyer gets it:
"Imagine Toyota, right?" said Breyer. "Millions sold in the United States. They have copyrighted sound systems. They have copyrighted GPS systems. Under [Wiley's] reading, the millions of Americans who buy Toyotas could not resell them without getting the permission of the copyright holder of every item in that car which is copyrighted? Am I right or am I wrong? "
"There are other defenses, but that is not this case," said Wiley's lawyer, famed Supreme Court advocate Ted Olson. "This case is not--"
Breyer interrupted him: "Well, how do you distinguish? How do you distinguish?"
The problem is far reaching, and much of the dangers extends into the technology sector and the situation that intellectual property theft and copyright violations are no longer a civil matter but a federal one in this country. Even ignoring dangerously misapplied copyright law to physical goods and the fact that this only applies to imported goods... we're a nation of importers, and this is a trial directly impacting First Sale Doctrine on imported, copyrighted goods.
Just for starters, programming code is subject to copyright, and complex programmable electronics are in
everything these days. Just look at how complex so many of the goods we're importing have become... if it stands, it sets a precedent of requiring a license and explicit permission to resell any copyrighted good from the rights holder. You give some companies an inch legally, they'll go a mile. All it takes is one bad apple to enforce it once and be successful, and once the initial villain is out of the way, everyone else will jump on board because a) it's legal to do so, and b) it'll make them even more money to take that opportunity. Imagine if Apple were allowed to tell you that you couldn't resell your iPad or iPhone. Imagine if Microsoft decided to refuse transfer of ownership on their Windows Embedded system in several vehicle models on the road today. You know all those petty trivial patent laws trying to eliminate the competition in the cell phone market? Imagine that extended into the copyright sphere where say Broadcom decides not to give resale license on devices that use their chipsets and drivers. They're the copyright holder, they do global business, their devices are imported... it's now their
right to deny resale of their copyrighted work and they decided to exercise that right. Congratulations, you're now breaking federal law and stealing Broadcom's intellectual property trying to sell your used laptop.
Kirtsaeng's hardly a saint, and honestly I think him and Wiley deserve each other. If a global media company is going to do business globally with products that are sold the world around without so much as a regional distinction beyond the front cover and publication page, they need to set a fair price
globally to prevent this sort of thing from happening, instead of price gouging customers in first world countries using asinine copyright laws to defend the practice
just because they can get away with it. At best, this should be a civil license usage matter with the government getting no more involved with this case beyond import tariffs and income tax off the profits... but it isn't. Wiley argued that it was copyright violations, and he was found guilty of doing just that in front of a panel of twelve jurors. This argument, decision and subsequent upholding and appeal has very deep and broad consequences if it goes unchallenged and unmodified. Modern copyright law is insidious and everywhere, and allowing this to stand basically allows foreign copyright holders a permanent dictatorial monopoly on the sale and resale of any and all goods that can successfully have copyright claims shoehorned into them in this country. If you don't think corporations and industries won't trip over each other to exploit that newfound power to its fullest, you're fooling yourself.
As for this...
When I first saw links referencing this court case a month or so ago, I hadn't ever clicked on them....but I was shocked at the headline and what it implied. But then I read one of your links, and I have to say that I would tend to side with the publishers. For those who are claiming that libraries won't be able to lend out books anymore...I think it's safe to argue that publishers would have gone after libraries 100 years ago when they opened their doors. They haven't gone after them then, and I really don't see them going after them now.
You apparently have no idea the turf wars libraries, publishers, and big media have fought the past few years over fair use, copyright law and digital media.
Have a small sample.Intellectual property rights do not drive innovation, competition and limited exclusivity does. Copyright was intended for creative works, not goods and services, and it was designed to protect those rights initially long enough for the creator to make a modest living off it, and then release it to the public domain after a reasonable time for the common betterment of society if its relevance survived long enough to do so. I don't see much of that application here. I see an 800lb gorilla who wants their pound of flesh, the privilege to make criminals out of people exploiting their exploitation of regional pricing practices, and damn the consequences for getting that.
I'm not saying that it could turn out as a "parade of horribles" or not, and I'm doing my best to try and ignore the mounting legal history of the erosion of property rights through copyright abuse in this country and shoot my dang optimism gun all over the place in hopes that the SCOTUS makes the right call... but the decision is going to be important to most American mustachians no matter what the outcome.
