October 28, 2012 | By Parker Higgins

Your Right to Own, Under Threat

­The Supreme Court is scheduled to hear arguments today in a case called Kirtsaeng v. Wiley, and their final decision could help shape the future of "first sale," a legal doctrine that underpins the right to sell, lend, or give away the things you buy, even if those things contain copyrighted elements.

First sale provides the legal framework for marketplaces like used bookstores, flea markets, garage sales, and eBay. It’s crucial to making sure U.S. copyright holders can’t dictate, for decades, what you do with the books, CDs, DVDs, games, etc., that you buy. But book publisher Wiley says it doesn’t apply if the copyright holder is clever enough to ensure the product in question is manufactured outside of the United States.

The Kirtsaeng case specifically deals with textbooks, but the Court’s decision is likely to affect a range of markets and consumers. First, many of the goods that people purchase every day are manufactured overseas and have some components or logos on the packaging that are subject to copyright law. In fact, the Swiss watchmaker Omega successfully sued Costco for copyright infringement because the retailer was reselling genuine Omega watches, purchased abroad, that happened to have the Omega logo on them. Second, if the Supreme Court rules in Wiley’s favor, U.S. copyright holders will likely ensure that as many of their works as possible are manufactured outside the United States, so that they, too, can escape that pesky first sale doctrine.

This dispute, however, is still just a skirmish in a larger battle to protect your right to actually own the things you buy. The first sale doctrine has long been a thorn in the side of many copyright holders, because it limits their ability to profit from and control secondary markets. In fact, attempts to lock down works after you purchase them extend back at least 100 years, when some publishers tried to set a minimum price at which you could resell their books. In more recent times, the problem has only gotten worse, with record labels attempting to restrict people's rights with "promotional" CDs to movie studios going after automated DVD rental services. Thankfully, Congress, the courts, and the market have repeatedly rejected those efforts.

So big media has embraced an alternative approach: bypass the first sale doctrine by recasting every sale as a mere license agreement. That ebook you bought? Licensed. That MP3? Licensed. And these end-user license agreements, or EULAs, don’t just prevent resale — they impose a variety of onerous terms of use as a condition of clicking the "buy" button for digital works sold online. It's an attempt to chip away at the rights consumers have long enjoyed in order to protect a legacy business model. That means the fight for first sale is also a fight against the proliferation of EULAs.

It's good that the Supreme Court is hearing Kirtsaeng this term — in fact, we joined a brief encouraging them to — but the story isn't necessarily over once the decision comes down. The next step might be for Congress to respond with legislation. If so, they need to know what consumers think: if it looks like a sale and feels like a sale, it's a sale, with all the accompanying rights and privileges. We're joining our friends at Demand Progress in giving you tools to ask your Congressmembers to defend your rights in your digital goods.

We know how vigorous the copyright industry lobby is about pushing for laws in their favor, even when they're against the public interest. It's important we let Congress know now that we want to see first sale alive and well and protecting our rights in the things we buy, even if they are digital goods and the sale is labeled a license.

If the copyright industry has its way, you may have to seek permission or face penalties when you resell or tinker with the things you've bought. And if that comes to pass, then we've all been owned.

EFF is teaming up with Demand Progress and Free Software Foundation to raise awareness about this issue and fight back. Please show your support by embedding this graphic into your website or replacing your social media avatar:

It's easy! Just copy and paste this code into the HTML of your site:

<a href="https://eff.org/r.a7pC"><img src="https://eff.org/files/owned.jpg" alt="You've Been Owned: Stand Up For Digital First Sale" /></a><br/>

And visit our action center to tell Congress to defend your rights to do what you want with the digital goods you paid for.


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