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October 28, 2012

Supreme Court case could Limit Ability to Sell Your Camera Gear and just about everything else with a copyright made outside the US

Diana Ross has a lot of friends. Nine of them wear robes. And they can make everyone's life better or worse depending on their reading of the constitutional tea leaves. One would hope that a combined total of well over half a millennium of life experience among the nine would be sufficient to prevent illogical conclusions but past performance does not always agree with that assertion.

The case that might impact photographers and many other people is Wiley v. Kirtsaeng. A book publisher is going after a student in the US who imported textbooks from Thailand and sold them in the US market. Because the books had significantly lower prices in Thailand, the student was able to make a nice profit reselling them to US buyers. The publisher, Wiley, not happy with this, is asserting copyright infringement, even though the books were originals, but sold without the blessings of Wiley.

The case on its own merit has little to do with anyone other than Wiley and Kirtsaeng. However, depending on how the Supreme Court decides the case, it has the potential of striking down the First Sale doctrine. If the wishes of our corporate overlords are fulfilled by The Nine, then individuals may not be able be able to sell their cameras, books, movies, smartphones, consumer electronics, or gifts received that they have no use of. New or used. In addition to impacting the average person, this could have devastating impact on libraries, non-profit thrift stores (Goodwill, Salvation Army, etc), eBay, Craigslist, Yard Sales, borrowing and trading among friends and family, and just about everything else.

The case focuses on products made outside the United States. Given that the vast majority of consumer electronics and the majority of non-consumables are made outside the United States, this could be huge.

Given the recent trends of the Supreme Court siding more and more with Big Business and Corporate Overlords (including the manufacturers price-control decision, Citizens United, etc), the Wiley case headlined by uber-super-uber-lawyer Theodore Olson, and the recent 4-4 split on the Omega vs Costco case, it looks like our beloved Corporate Overlords have a pretty good chance to get everything they want.

Read All About It
A two-page overview of the case can be found at Ars Technica. Another write up at Forbes. More as this develops via Techmeme.

A number of organizations and affected companies and concerned groups have united to form the Owners Right Initiative which aims to defend the First Sale Doctrine with the tag line: "if you bought it, you own it".

For more on this case, simply Google Wiley vs Kirtsaeng.

The Time is Now
This case has been discussed for a while. What brings it to the forefront right now is that the Supreme Court will hear arguments on Monday October 29, 2012.

It is sort of like DRM for physical goods?
It took a long while before the Corporate Overlords finally allowed music to be liberated and now we can buy (technically license, not own) music in .mp3/non-DRM format and play it on any compatible device without restrictions and jumping through digital hoops.

Still, digital books, digital movies, and digital audiobooks are trapped in DRM-Land, making life miserable for people who actually pay for the books and play by the rules yet doing very little to stop infringement, especially among those who are determined to infringe.

The hope of many was that content owners would see that "liberating" music from DRM did not doom and gloom the industry and they would decide to "liberate" digital books and digital movies as well.

Then there is the wish for a more consumer-friendly approach to inheritance and transfer of digital content. The ones who dictate the licenses/terms-of-sale interpret these as a license to consume for a specific individual, a license that cannot be transferred or inherited. From the consumer side, inheritance and transfer of ownership/license seems to be a reasonable thing to wish for.

Well, wake up from those fantasies! Our beloved Corporate Overlords want to caress with DRM physical and tangible products, not just digital content!

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