Supreme Court to Revisit 'First-Sale' Copyright Doctrine

This is another attempt at segmenting a market for goods depending on the price that can be extracted for that good in a particular market, while keeping the cheap versions from being marketable in countries with higher discretionary income. Somewhat similar to DVD region codes, except applied to books.

Publishers sell (or sell rights to sell) lower-quality texts abroad because they can make a profit. Then they get pissy when people resell those international editions in the U.S.

The market says that people want cheaper books and they don't care about colors or paper quality. Textbooks often end up mauled after a semester anyway. Publishers don't listen, people try to fill the void, and they get sued.

"While the written content of books for the domestic and international markets is often similar or identical, books intended for international markets can differ from the domestic version in design, supplemental content (such as accompanying CD–ROMS), and the type and quality of materials used for printing, including “thinner paper and different bindings, different cover and jacket designs, fewer internal ink colors, if any, [and] lower quality photographs and graphics." (from background in the 2nd circuit ruling)

http://caselaw.findlaw.com/us-2nd-circuit/1577369.html

The Supreme Court reverses cases it gets more often than not. But here, there's already a circuit split. And the last case of its kind was a 4-4 split, so if you're in to reading tea leaves, this is a toss-up. But this time I don't think that Kagan will recuse herself and I don't think that having argued the government's side in the previous case says anything about her personal beliefs on the matter.

In the Costco case, the problem was that the copy had to be "lawfully made under this title." With "this title" referring to US law, foreign copies need not apply. But that's kind of a silly technicality for the case to turn upon and a poor reading of the phrase. It's not as though international copies are being unlawfully made, after all. There's also the Berne copyright convention that applies pretty much everywhere, not to mention all the other agreements (including ACTA), and the direct influence the US exerts via the USTR and diplomatic pressure. Just look at Spain, for example, and how their copyright laws were forcibly influenced by the US. And they're far from being the only example.

But it may just come down to whether the justices think that the copyright holder is being ripped off via cheap imports, or whether US citizens are being ripped off by publishers. For the more legally inclined, Patently-O has a good writeup. Incidentally, I seem to recall hearing that at least one of the sitting justices reads it.

http://www.patentlyo.com/patent/2012/04/supreme-court-to-hea...

EDIT: I found this posted at Patently-O. It's a good analysis of the harm that limiting copyright exhaustion to US-manufactured works would cause:

http://acrlog.org/2011/08/30/nothing-right-about-this-copyri...

To be clear: a private student imported eight used textbooks (legally purchased abroad, and legally manufactured abroad), re-sold them here in the United States, and got fined $600,000 for "damages".

The $600,000 fine was upheld on appeal.

It seems like we may have lost the thread as a country if this is indeed the result we think is just, fair or reasonable.