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Ever Sold a Used iPod, You May Have Violated Copyright Law

http://www.theatlantic.com/national/archive/2012/06/if-youve-ever-sold-a-used-ipod-you-may-have-violated-copyright-law/258276/

If You've Ever Sold a Used iPod, You May Have Violated Copyright Law
By Marvin Ammori
Jun 8 2012

The Supreme Court will decide whether secondhand items copyrighted abroad can be legally sold within the United States.

The Supreme Court will soon hear a case that will affect whether you can sell your iPad -- or almost anything else -- without needing to get permission from a dozen "copyright holders." Here are some things you might have recently done that will be rendered illegal if the Supreme Court upholds the lower court decision:

1. Sold your first-generation iPad on Craigslist to a willing buyer, even if you bought the iPad lawfully at the Apple Store.

2. Sold your dad's used Omega watch on eBay to buy him a fancier (used or new) Rolex at a local jewelry store.

3. Sold an "import CD" of your favorite band that was only released abroad but legally purchased there. Ditto for a copy of a French or Spanish novel not released in the U.S.

4. Sold your house to a willing buyer, so long as you sell your house along with the fixtures manufactured in China, a chandelier made in Thailand or Paris, support beams produced in Canada that carry the imprint of a copyrighted logo, or a bricks or a marble countertop made in Italy with any copyrighted features or insignia.

Here is what's going on.

The Supreme Court case concerns something called the "first-sale doctrine" in copyright law. Simply put, the doctrine means that you can buy and sell the stuff you purchase. Even if someone has copyright over some piece of your stuff, you can sell it without permission from the copyright holder because the copyright holder can only control the "first-sale." The Supreme Court has recognized this doctrine since 1908.

To use a classic example, imagine you buy a novel by Sabina Murray. Sabina owns the copyright to the book, so you can't make a copy of the book. But you bought a copy of the book, and can sell the copy to anyone who'll pay you for it. You can sell it to a neighbor, to a fellow student, or to someone else on Craigslist or on eBay.

But the first-sale rule doesn't just make it possible to sell your books and other creative works like CDs, paintings, or DVDs. Almost every product made now has a copyright logo on it. That logo, alone, empowers manufacturers to sue people for copyright infringement for unlawful sales.

The first-sale doctrine is one thing that makes it lawful to sell almost any good. The companies that have gone to court and sued over selling their "copyrights" include a watchmaker and shampoo producer. They have gone to court arguing that one part of the Copyright Act -- which gives them a right against unauthorized imports -- invalidates the first-sale doctrine.

In 1998, the Supreme Court ruled that the first-sale doctrine applies to any product manufactured in the United States, sold in the U.S., even if the first sale by the copyright holder was abroad and the item was imported back into the U.S. This decision was unanimous and rejected the interpretation preferred by the U.S. government's lawyer -- and the biggest copyright holders.

The legal confusion today concerns only products made abroad.

Continuing a long string of similar cases, the Supreme Court will review a New York federal court decision that decided, in short, that the first-sale doctrine does not apply to any copyrighted product manufactured abroad. That case concerns textbooks.

John Wiley

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