The Supreme Court, Copyright Law, and Common Sense
Public interest groups want the Supreme Court to fix our stupid copyright laws.
EFF (“Public Interest Groups to Supreme Court: Bring Copyright Law In Line With Common Sense“):
EFF—together with Public Knowledge, two national library associations, and U.S. PIRG—submitted a brief [July 9] urging the United States Supreme Court to begin the process of rescuing first sale rights, which have been under assault for decades.
The brief was filed in the case of Wiley v. Kirtsaeng, which turns on the re-sale of textbooks in the U.S. This fall, hundreds of thousands of students will head off to college, ready to fill their heads with knowledge. What they may not realize yet is that they will also be filling the coffers of U.S. textbook publishers, which sell required college texts at exorbitant prices knowing students have little choice but to cough up the cash.
Standing in the way of this tidy scheme is the used textbook market, and that market—not to mention used bookstores, libraries and video rentals—depends on our time-honored first sale doctrine. Under this doctrine, the buyer of a book or any other copyrighted work has the right to dispose of that particular copy as she sees fit.
Unless, according to two appellate courts, those books happened to be manufactured outside of the United States. Due to an obscure provision in U.S. law, those courts have held that the first sale doctrine applies only to works made in the USA. In other words, if copyright owners are crafty enough to outsource the actual manufacture of their works abroad, they can control future redistributions of copies of works that were manufactured abroad, for the entire copyright term.
Our amicus brief urges the United States Supreme Court to reject that interpretation. As we explain, courts are supposed to interpret laws so as to avoid absurd results. Limiting first sale to works made in the United States encourages at least two perverse outcomes: American consumers lose access to affordable used copies of products, and companies move America manufacturing and related jobs overseas. Congress could not have intended these results. What is worse, given that copyrighted works are embedded in all kinds of goods, from refrigerators to watches, the ramifications would reach well beyond the traditional book market.
But this case is important for another reason: it is a chance for the Supreme Court to send a message about the future of first sale rights. Over the past decade, courts and copyright owners have quietly been creating a world in which goods that contain copyrighted works are never truly owned, but only licensed. And those licenses inevitably contain a plethora of legal restrictions on consumers’ ability to fully use those goods. Never mind that the consumer paid for a permanent copy and the seller doesn’t really expect that the buyer ever give it back—the fine print claims to transform a sale into something else.
The public should be watching this case closely. It is an opportunity for the Supreme Court to stand up for common sense and recognize that copyright is supposed to serve the public interest, not the other way around. Let’s hope it does so.
I’m fully on board with EFF and friends on the policy merits of this issue. It simply makes no sense to have a different interpretation of First Sale Doctrine depending on the national original of the materials and the outcome here is perverse for all the reasons outline in the post above and, in a more detailed manner, in the amicus brief [PDF] itself. Further, if this is simply a matter of statutory interpretation—deciding whether Congress intended this loophole in the law—then the arguments here are perfectly useful in helping the Court decide the case.
What piqued my interest, though, we the notion that this case presents “an opportunity for the Supreme Court to stand up for common sense and recognize that copyright is supposed to serve the public interest, not the other way around.” That ain’t the Court’s job. The Constitution specifically authorizes Congress to make laws “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.”
It’s up to the Congress to decide the wisdom of the law; the Court’s job is to ensure Congress doesn’t exceed its Constitutional mandate. As always, FindLaw’s Annotated Constitution is an invaluable source for summarizing the history of judicial interpretation of various sections and clauses of the Constitution. While I commend the entire discussion there to those interested in the details, this summary hits the highlights:
[Congress'] power is limited with regard both to subject matter and to the purpose and duration of the rights granted. Only the writings and discoveries of authors and inventors may be protected, and then only to the end of promoting science and the useful arts.
These precedents go back to the 1820s. Nowhere is there a limitation based on the notion that “common sense” must be served. It’s up to the voters, not the unelected judiciary, to decide whether Congress is living up to that standard.
via Julian Sanchez