Some more on Kirtsaeng v. Wiley

I wanted to touch some more on Kirtsaeng v. Wiley than I did in my previous post because I didn't really write anything of substance and I wanted to put out more on the subject than snippets of the court opinion.

Often my first thought in regards to many cases like this is library application, since that is what I deal with daily.  In this case even the prosecution admitted that a decision in their favor could be used against any sort of reselling of goods manufactured outside the US, including goods purchased wholesale to be resold in stores.  I side with Justice Breyer in that I don't believe that exploitation of a favorable ruling against First Sale is a baseless fear.  If there was nothing to fear then copyright trolling would not be nearly so lucrative.

Largely any books, DVDs, CDs, etc that we purchase for the library are published in the US, so in this case the threat against the First Sale Doctrine would not affect a large portion of our collections.  We don't just circulate media, and we do not just circulate media that we have purchased.  In our collection of "non-traditional library materials" for in-house and for full circulation we have: e-readers, a tablet (used to be two but that was short lived), art work, and laptops.  We have a well developed Russian collection.  We supplement our collections with donations, and our Friends of the Library group's biggest fundraiser is an annual book sale.  Any of these areas have the high potential to involve items that may have been printed/manufactured outside the US.  If the software and hardware in a car would run afoul of a ruling against First Sale in this case, then I can guarantee an e-reader, tablet, or laptop would cause just as much if not more trouble.  After all, the car might have more components manufactured inside the US than the personal device.

I'm not convinced that a ruling that would require additional permission from a copyright holder to display an image would be used to go after an individual's choice in bumper stickers.  That would be so trivial and seems mind-numbingly pointless.  On a larger scale, such as art galleries, museums, and even art on the walls in a restaurant, it is not quite so funny.  And it would also create a huge opening for which legal action could be brought against someone because it was convenient for whatever reason.  If you pay attention to legal proceedings and lawsuits related to copyright and patents you will likely have seen quite how ridiculous the cases can be (Apple vs. Samsung anyone?).

Libraries rely on First Sale to operate.  Every one of us, if we realize it or not, regularly take part in transactions that rely on First Sale.  Craigslist, eBay, tag sales, used book stores, second-hand clothing stores, movie rentals, video game rentals, a poster on your wall, even big name retail stores rely on it.

The other part that really gets me about almost any copyright case against an individual is the damages asked for.  The purpose of fines for violating copyright is to compensate for revenue lost and market damages.  "The publisher was awarded damages of $600,000, more than 15 times the amount that Kirtsaeng made from the sale of the books." (Source: Citizens for Ownership Rights).  I've heard other numbers bandied about, though compared to the amount the RIAA asks for that's  low ($1.5 million for 24 songs?).

When the United States ratified copyright law the purpose was "to promote the progress of science and useful arts by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries."  I do believe in that as a valid concept, and that creators deserve protection for their content.  What we have these days is a rather convoluted code with many grey areas that does not always protect the content creator (see Jonathan Coulton vs Glee) and coverage that has been extended drastically largely in response to pressure from a company that is founded on remixing:

Here's my favorite example, here: 1928, my hero, Walt Disney, created this extraordinary work, the birth of Mickey Mouse in the form of Steamboat Willie. But what you probably don't recognize about Steamboat Willie and his emergence into Mickey Mouse is that in 1928, Walt Disney, to use the language of the Disney Corporation today, "stole" Willie from Buster Keaton's "Steamboat Bill."

It was a parody, a take-off; it was built upon Steamboat Bill. Steamboat Bill was produced in 1928, no [waiting] 14 years--just take it, rip, mix, and burn, as he did [laughter] to produce the Disney empire. This was his character. Walt always parroted feature-length mainstream films to produce the Disney empire, and we see the product of this. This is the Disney Corporation: taking works in the public domain, and not even in the public domain, and turning them into vastly greater, new creativity. They took the works of this guy, these guys, the Brothers Grimm, who you think are probably great authors on their own. They produce these horrible stories, these fairy tales, which anybody should keep their children far from because they're utterly bloody and moralistic stories, and are not the sort of thing that children should see, but they were retold for us by the Disney Corporation. Now the Disney Corporation could do this because that culture lived in a commons, an intellectual commons, a cultural commons, where people could freely take and build (Free Culture, Lawrence Lessig, Keynote from OSCON 2002).
These days heaven forbid you remix content in a way that can be linked to Disney (especially in raunchy parody).

Further reading on copyright:
Free Culture / Lawrence Lessig (free to read online, print copies are available for purchase)
Copyright and other fairy tales : Hans Christian Andersen and the commodification of creativity / Helle Porsdam (trying to find a copy of this book at an affordable price is heart-wrenching).
Berry, John N., III. "The Real Purpose of Copyright." Library Journal — Library News, Reviews, and Views. 1 July 2000

Further reading on Kirtsaeng v. Wiley:
Some background on the case here.
An article on the decision (that isn't a court opinion) here.
Corey Doctorow posting on BoingBoing.
Association of American Publisher's position against the case here.
Supreme Court history & proceedings on Kirtsaeng v. Wiley here.


Popular posts from this blog


Fun with legacy barcode scanners and PS/2 to USB adapters

[Book Display] Banned Books Week 2015