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Comment by mseebach | Hacker News Reader

Correct me if I'm wrong, but isn't there a " ... purchased outside the US" missing from the title of the piece?

The article says: "... seeking to knock out the "first sale" doctrine on goods made abroad" (emphasis mine) - surely a product made abroad, but sold in the US by an authorized importer/reseller will still be subject to first sale? And it would still be legal for students to buy books for themselves abroad? Even the example mentioned where US students buy books directly on Amazon UK doesn't seem to be affected - just their right to resell that book in the US?

It's still a big deal, but it seems that Ars is making it quite a bit bigger than it is.

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You're quite right.

I've been far from happy with the way this case has been covered in the tech press; the sky is not falling, you can still resell your iPod when you're done with it. What you can't do is start a side business where you become a company's competitor by finding another country where prices are low enough that you can buy bulk and import into the US for less than the US price.

Which should surprise practically nobody, so I guess that's why everybody is rushing to sensationalize the hell out of this.

(and the fact that a sensationalized version of this appears and gets highly upvoted on HN about once a week is a depressing indicator of not just the press, but the state of the community they're feeding)

> What you can't do is start a side business where you become a company's competitor by finding another country where prices are low enough that you can buy bulk and import into the US for less than the US price

Why not? That's the free market economy at work isn't it? How is this different to off-shoring production and supply sourcing to save money?

Because the law says so. I'm all for changing the law, but that's just not what this case is about.

You will need to cite which law says so. If a business decides to import books published in Thailand by Thai publishers into the US, does the law prevent them from doing so? And if it does, could not the importer take the US to the WTO for a ruling that this was a trade barrier?

What if an American living in Thailand purchased books in the US, imported them into Thailand and sold them at a profit? Would that also be illegal under this law?

>Which should surprise practically nobody

Why? You mean corporations can arbitrage production and employment costs, and we can't arbitrage product purchase costs is logical?

If the ruling is narrow enough to allow the resale of goods purchased from the US that were imported under license, and forbid the resale of unlicensed imports; that would be one thing.

But... It won't necessarily be that narrow, and it is but one battle in a long war over who gets to control a good once it has been sold. It certainly would be possible for the Supreme Court to produce a ruling in this case that would see grandmothers being cuffed for illegal reselling at flea markets.

> If the ruling is narrow enough to allow the resale of goods purchased from the US that were imported under license, and forbid the resale of unlicensed imports; that would be one thing.

If the sale happened in the US, it doesn't matter where the product was produced, first sale applies. Apple can't in any form claim that an iPhone purchased in an Apple store in the US was, in fact, an unlicensed import.

Again, correct me if I'm wrong: But "first sale" is a long-lived and fairly unambiguous law. Unless it's found to be unconstitutional (which is not being questioned), the courts can't just change it.

The question before the court is what happens when the sale happened abroad, because US copyright law doesn't trivially apply abroad.

What gets murky, as far as I can tell, if first sale doesn't apply abroad are online merchants that can trivially fulfill your order from abroad, thus making you the importer - just like the Amazon UK case. Then you'd be forbidden from reselling that product in the US without the copyright holders permission.

The Second Circuit decision does seem to say that Apple can deny first-sale rights on things manufactured overseas and sold in the US by Apple. I was skeptical, but the dissent in that case talks at length about it, and I assume the dissenting judge knows more than me about what's at stake.

That said, it's just about a guarantee that SCOTUS won't stomp all over the first-sale doctrine. It can easily keep both the first-sale-in-the-US rule alive as well as maintaining the rights of IP holders against unauthorized imports.

It absolutely is that "narrow". Goods you buy from an authorized distributor are fair game for resale.

It definitely looks like you're right, and that Ars seems to be misstating this. But I also agree, it's still a big deal. What industry hasn't attempted to get every inch out of law that they could, even if it's apparent they will eventually fail? It's in their financial interest to try, after all.

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