A court case in New York is currently raising eyebrows. Apparently, the case is headed to the supreme court because the lower level courts have ruled that if you bought something like a computer from overseas, the act of selling that computer in the US could be a violation of copyright laws. It is seen as an interesting test of the “first-sale doctrine”. Combine this with what is known to be in the TPP (Trans-Pacific Partnership), the act of selling your own computer could theoretically even be a criminal offense.
Some of the legal thinking behind the sale of music on the side of major multinational corporate record labels is that when you buy a CD, you bought a license to listen to the music on that medium and not necessarily have ownership of the music you bought and paid for. If the supreme court rules a certain way, that kind of thinking could apply to any copyrighted or patented object like a physical computer. In effect, selling your computer could become a form of copyright infringement because many companies hold the intellectual property over the device (i.e. the logo printed on it). Here’s a report from The Atlantic written by first amendment lawyer Marvin Ammori on the case:
The Supreme Court will soon hear a case that will affect whether you can sell your iPad — or almost anything else — without needing to get permission from a dozen “copyright holders.”
The legal confusion today concerns only products made abroad.
Continuing a long string of similar cases, the Supreme Court will review a New York federal court decision that decided, in short, that the first-sale doctrine does not apply to any copyrighted product manufactured abroad. That case concerns textbooks.
John Wiley & Sons, a textbook publisher, sells expensive versions of the textbooks here and less expensive versions abroad. Supap Kirtsaeng, a foreign graduate student at University of Southern California, decided to help pay for his schooling by having relatives buy him copies of the foreign versions abroad, send them to him, whereupon he’d sell those books on eBay to willing students. He’d make money, the students would save money, but Wiley might have fewer sales of its pricey American versions. The case is styled Kirtsaeng v. John Wiley & Sons.
Both the District and Second Circuit courts held that any product manufactured abroad is not subject to the first-sale doctrine. For instance, that iPad you sold. You noticed this statement: “Designed by Apple in California. Assembled in China.” Same for the iPods you’ve owned, the iPhones, and the MacBooks. Because those products were manufactured abroad, according to the Second Circuit, the first-sale doctrine doesn’t apply to them. You need the permission of every copyright holder to sell the iPad.
Demand Progress apparently isn’t happy about the way this legal case is going and has notified us of this case saying:
It’s unbelievable, but trademark and copyright holders really are trying to take away your right to sell things that you own: Please add your name at right to fight back.
If we don’t speak out now, we won’t be able to sell almost anything we own — and if we do, we’ll face charges for violating intellectual property law!
First-Sale Doctrine gives us the right to sell most property we own. But if the Supreme Court supports the lower court’s decision, we won’t really “own” anything if it’s been made in a different country. We expect them to issue a ruling later this year.
It’s bad for so many reasons: It’ll undermine Craigslist and Ebay, hurt the environment, increase incentives for manufacturers to make things and move jobs off-shore, and effectively ban the traditional American yard sale.
The part that gets really dicey is when you throw in the Trans-Pacific Partnership (TPP) agreement into the discussion. If the court case rules in favor of rightsholders, then the TPP is ratified in the US, the act of selling your computer could also become a criminal offense. Here’s a relevant portion of the agreement we found last month:
8. Requires adopting compensation for infringement without actual damages.
9. For copyright and trademark, criminal punishment would apply even to non-for-profit infringement.
Granted, this is a long way away and there’s always the possibility that this agreement will be rejected, however, that doesn’t make this outcome impossible either. This helps add some perspective into how freaky things could get in the future. One ruling from the Supreme Court could set the seeds for the practical criminalization of re-selling your own personal, legally purchased property.