It was nice owning you.
Four years ago in California, a graduate student by the name of Supap Kirtsaeng paid part of his tuition by reselling, at a profit, textbooks he'd bought from overseas. A publisher called Wiley and Sons brought a lawsuit against him, alleging that he was acting as an "unauthorized reseller" and thus breaching copyright law. The ensuing legal case has made its way to the Supreme Court, which will begin hearing arguments on Monday, and though it hasn't attracted much press attention, the hearing has massive implications. Sources as politically disparate as DemandProgress.org and Forbes.com have warned that our right to buy and sell our own property hangs in the balance.
The linchpin of Kirtsaeng's defense is the "first-sale doctrine" (established in 1908 by the Supreme Court's Bobbs-Merrill Co. v. Straus decision, and affirmed in the Copyright Act of 1976), which holds that a person buying a product purchases not only the use of the item, but also the right to dispose of it as he/she sees fit. Whether that means selling the item secondhand or tossing it on a bonfire, the copyright holder has nothing to say about it. In this case, a victory for Wiley would invalidate "first-sale" and require anyone reselling a copyrighted item to get permission from the copyright holder. In other words, you could be sued for selling old DVDs at a garage sale. You could be sued for unloading an iPod on Ebay. And getting rid of textbooks? Impossible, unless you return them to the manufacturer for pennies on the dollar.
Essentially, if Wiley and Sons have their way, any book or movie you buy will no longer be "your copy." It will be the publisher's copy, for which you have purchased the non-transferable right of use. It's worth noting that property rights in Tsarist Russia worked the same way: all land belonged to the Tsar. The most that any citizen could buy was the right to use the land, and even that right reverted to the Tsar as soon as the citizen should die, default, or be arrested.
We're looking at an America where patent and copyright holders have the same property rights that Nicholas II had. And while there's nothing un-Capitalist about that, it does seem slightly un-American. Kirtsaeng v. Wiley has nothing to do with Capitalism vs. Socialism. It is simply the private property claims of copyright holders butting up against those of, well, everyone else. If the copyright holders win, they will be able to limit the right of everyone else to hold private property. And if that kind of power is dangerous in the hands of the government, is it less so in the hands of book publishers, film studios, and tech companies? Regardless of who your masters are, when you're not free, you're not free.


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