The Kirtsaeng case is quite important because, if lost, it would create a loophole to destroy "first sale" in the U.S. entirely. Just cease manufacturing any sort of copyright material in the U.S.; move ALL production to Mexico or China. If the Kirtsaeng case is lost, reselling any of those works would become illegal, eliminating used book stores and similar enterprises entirely. And indeed, this could apply to any product with writing on it or code in it - massive incentives to move all production of such things out of the U.S., since then you would be able to prevent ANY secondary sales of your product.
VERY important case, with massive implications for the future structure of U.S. society and the economy.
Wrong. If it's sold in the US, first sale applies. That's why it's called the 'first sale' doctrine, not the 'first manufacture' doctrine. I already have books that were printed in Mexico and China, and you probably do too.
I apologize for not responding in more detail, but it's late. I would be glad to continue this conversation, though. In brief, I'd argue that in its opinion (on page 16 at 12-14), the 2nd circuit is treating 'lawfully made' as encompassing not merely the manufacture, the but the publication and offering for sale to the public (as mentioned at the bottom of page 13).
The idea that this would eviscerate the first sale doctrine makes no sense, since publishers who aimed to circumvent it would have to publish their work elsewhere, import it for sale into the US, and then deny that the work had been published in the US (and abandon the protection of US copyright law in the process). The law does not compel absurd results, and I don't see courts buying into the idea that American Book Co. promotes and offers a book for sale in the US with US pricing, LoC catalog data and all the rest, while simultaneously denying that it had published the book in the US. This would be cutting off one's nose to spite one's face; as the court observes in footnote 40, Kirtsaeng's reading would require copyright holders to either keep the material off the market altogether or to sell it only in places that are not signatories to Berne.
I haven't sat down and read your brief yet, and probably won't get around to it until next week; the last time I took a look at these issues was 6 months ago, so I apologize for this highly abbreviated argument. In a nutshell, though, the idea that first sale should apply to all works published outside of and imported into the US requires courts to accept the view that American law travels wherever Americans and American commercial relations go, such that if an American desires to buy something American law is unilaterally imposed on a foreign seller. That would be derogation by the back door, as it were.
PS, in response to the plaint that a win for Wiley would make the resale of artworks, storage in libraries, and so on impractical for any and all works of foreign origin, I would refer you to the reciprocal arrangements summarized in http://www.copyright.gov/circs/circ38a.pdf and point out that the text of the copyright act already explicitly provides for such situations, something which is usually waved aside in the parades of horribles.
The american law wouldn't be imposed on the seller. They'd merely have to accept the limitations of their county's law on the buyer, with regard to their inability to prevent resale.
Which isn't as much forcing our law on them as not letting them force theirs on us by attaching it to a sale.
Anyways, the entire issue is a red herring created by fraudsters. There are already the concepts of renting or licensing which are limited. Sale is unlimited. Anything else is false advertising.
To retain resale rights simply don't sell something. If that isn't enough for you (in the generic) you're a criminal.
Given the practice of tax dodging, how many items are really sold in the US by US webstores? Are you sure that all those amazon books are sold "in the US" and not from Ireland or some small island somewhere?
If the transaction is initiated by a US consumer inside the US, it's considered to be a US sale. If you dig into the case law on this, you'll find that the concept of first sale doctrine is perfectly well understood by the legal establishment and is not about to shrivel up and blow away.
There's an excellent (albeit technical) introduction to these issues in the 9th circuit's ruling on Omega S.A. v. Costco Wholesale Corp.. Read up also on some of the journal articles from the Wiki page: http://en.wikipedia.org/wiki/Omega_S.A._v._Costco_Wholesale_.... and if you're really itnerested, dig into the amicus briefs.
As someone from Ireland, I'll tell you amazon, despite having s large EU office here and their AWS European region here, do not actually sell much here. There is no amazon.ie, you must buy from the UK amazon.co.uk or the US amazon.com. If you have a kindle, you must use the US amazon.com kindle store. If you have a customer service complaint about your kindle you have to eventually find a US customer service number.
Are you sure about that? I understood it to be ruling that disallows you from buying abroad and importing. So if they moved production to Mexico, but then they imported and sold it to you, it would not matter - you'd still have first sale. What you couldn't do is buy it in Mexico and bring it in yourself and sell it.
I'm against any erosion of first sale and believe all "grey market" stuff should be legal. Companies should find other ways to differentiate products rather than the meatspace equivalent of "region locks".
But let's be honest: this case isn't suddenly going to destroy first sale _within the US_.
You should have a look at the gap between the Ninth Circuit's holding in Omega v. CostCo and the Second Circuit's holding here. :-)
In footnote 44, the Second Circuit agrees that its own "decision may allow a copyright holder to completely control the resale of its product in the United States by producing its goods abroad and then immediately importing them for initial distribution" but says that this "does not affect or alter our interpretation of the Copyright Act".
Region locks are not desired by copyright holders, but by the distributors in those regions who want exclusivity within their retail territory. Suppose you make a product and discover that someone in, say, Indonesia is faking and selling a counterfeit version. Are you equipped to sue them? Probably not unless you're a large global firm, so it makes more sense for you to sell your product through a distributor in that territory. Likewise, pricing is different because incomes and economies are different. You charge the price the market will bear in each territory.
None of this prevents individuals from buying something for themselves overseas and taking it home to use. But it does prevent bulk importation, which parties to a distribution agreement are contractually required to combat.
Well yes, that's why you enter into a distribution agreement with a wholesaler in that market if you can rather than sitting back and letting your stuff be republished for nothing.
>I understood it to be ruling that disallows you from buying abroad and importing. So if they moved production to Mexico, but then they imported and sold it to you, it would not matter - you'd still have first sale.
The key word in that sentence is "they" -- who is "they"?
Here's the problem: The copyright holder manufactures the product abroad and sells it abroad to a nominally unaffiliated distributor who then imports it into the United States. In theory the distributor is doing what would not be allowed -- importing the foreign product without a license -- but the copyright holder gets to decide whether or not to sue them. And they don't sue them, this one unofficial distributor with whom they have an unspoken agreement. They only sue you when you go to resell the used product, claiming it was never sold by the copyright holder in the United States.
Maybe you could make some claim that the distributor had a de facto license based on the fact that the copyright holder implicitly allowed the importing to continue, but good luck proving it when they claim it was unsanctioned (and meanwhile they have a token official U.S. reseller with near-zero sales volume who sells at 5X the price, and a list of other unsanctioned importers who they've sued to shut down).
The Kirtsaeng case is quite important because, if lost, it would create a loophole to destroy "first sale" in the U.S. entirely. Just cease manufacturing any sort of copyright material in the U.S.; move ALL production to Mexico or China. If the Kirtsaeng case is lost, reselling any of those works would become illegal, eliminating used book stores and similar enterprises entirely. And indeed, this could apply to any product with writing on it or code in it - massive incentives to move all production of such things out of the U.S., since then you would be able to prevent ANY secondary sales of your product.
VERY important case, with massive implications for the future structure of U.S. society and the economy.