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by adam mathes
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A Victory For The First Sale Doctrine, But At What Cost?

A publisher of some of the textbooks, John Wiley & Sons, sued Mr. Kirtsaeng for copyright infringement, and it won $600,000 in the lower courts. In a 6-to-3 decision, the Supreme Court threw out that award and ruled that imported copyrighted goods were subject to the same rules as goods bought in the United States: owners of particular copies can do what they like with them.

Adam Liptak, Supreme Court Eases Import and Sale of Copyrighted Products, New York Times

I agree with this decision, and it’s one of the few bright points in liberal copyright law interpretation we’ve seen recently in the United States.

It’s a victory. It might, however, have some terrible consequences.

Abandoning Foreign Markets

In the case of expensive textbooks (what this case was about) – these cheaper versions were often competing with free pirated copies since there was no chance the first world prices would be accepted.

If selling cheaper textbooks in the developing world means importers can resell those (identical) books in the developed world at a fraction of the cost, publishers may just abandon developing nation markets altogether – the market may just not be large enough to justify the risk to their more profitable business in other locations.

Non-existent Digital Rights

The first sale doctrine is an incredibly powerful and useful concept that, basically, does not apply to most digital goods sold today.

If you “buy” an ebook from Amazon, Google, or Apple you buy a license to access that ebook, not an actual copy you can resell when you’re done.

This is enforced both contractually and technologically, and circumventing those restrictions is generally illegal.

Technological methods enable publishers to regional price fixing by setting different prices in different locales, and to enforce them with the ability to ban reselling via terms of service and technical restrictions (the Orwellian industry named “Digital Rights Management” when in fact it’s about eliminating any rights to digital materials.)

These decisions may make ebooks the only option in some of these markets – when they may be the markets that would be most harmed by eliminating paper books and the used books market.

Digital Freedoms

Until we have regulation that begins to apply fair use rights, first sale doctrines, and other legal frameworks used to balance the rights of readers vs. copyright holders to digital works, we will be fighting the last war, not the current one, as digital distribution is our future.

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