Supreme Court sides with student in case over textbooks

http://www.salon.com/2013/03/19/court_sides_with_student_in_case_over_textbooks/singleton/

by nla • 13 years ago

266 209 13 years ago

salon.com

pc863• 13 years ago

I'm glad, obviously. You should be able to do whatever you want with something after you purchase it.

But it just makes me sad this had to get to the Supreme Court.

jrajav• 13 years ago

> But it just makes me sad this had to get to the Supreme Court.

Not being a lawyer, isn't this the best result possible for consumers in terms of establishing precedent?

mrchucklepants• 13 years ago

I would agree. After I buy it, it is mine to deal with as I please.

pc863• 13 years ago

It is, the part that makes me sad is we had to set the precedent in the first place. It's good that a precedent has been set but it's ridiculous there was ever a lawsuit over reselling a book.

Shivetya• 13 years ago

So, will IP on physical media be subject to this ruling? Will this accelerate us away from being able to even buy physical copies of these items?

gameshot911• 13 years ago

Honest question: What if the good was only sold to you with a particular assumption? For example, if a phone company sells me a smartphone with the agreement that I do not unlock the phone, should I still be able to do whatever I want with the phone (unlock it) after it is in my possession?

darkarmani2• 13 years ago

> What if the good was only sold to you with a particular assumption?

Everything is sold with particular assumptions. Consumers often use their purchases in ways the seller didn't foresee.

pc863• 13 years ago

Anyone who signs an agreement should be bound by that agreement assuming the other party did not act in bad faith.

I think it's important to stick to text books though and not venture into software or cell phone territory because it's a very safe bet that no contract was ever signed and no agreement was ever entered into other than "here's my money, give me that book."

usea3• 13 years ago

I'm not the GP, but yes. As long as you were willing to break that agreement and take on any penalties incurred. If the device is yours, you can smash it on the ground even if the agreement prohibits it. However, you've now broken the agreement and there may be a fee or some other penalty.

coldpie• 13 years ago

> What if the good was only sold to you with a particular assumption?

Then you specify that assumption and the penalties for breaking it in a contract, which both parties sign. That's why I find the phone unlocking thing so baffling--you're already under contract, why do the carriers care if you unlock your phone so long as you don't violate the terms of the contract?

jug6ernaut• 13 years ago

Honestly I don't know how i feel about this. As a recent grad i know full well how high prices are for text books, i would do everything possible to prevent having to buy them.

I personally thing the requirement to always have a new textbook(that years version) is more ridiculous then the prices they charge. I don't know where that requirement stems from, but in my opinion it is the real problem.

But with that said I don't see this ruling lowering prices, if anything it will increase the prices in the other regions where the prices were previously lower.

There is no kind of magic bullet with these kinds of things, companies are not going to just lower profit margins, they will always try to make it up somewhere.

pkfrank• 13 years ago

Potentially relevant bit from the Higher Opoprtunity Education Act's textbook provision:

http://content.efollett.com/HEOA/library/HEOATextbookProvisi... Provision C.1.c:

Publishers are required to provide [to the professor or other book chooser]...

>A description of the substantial content revisions made between the current edition of the college textbook or supplemental material and the previous edition, if any.

I'd like to see this information made public in a reliable manner. It's well and good that the professors should be enlightened about the relevant content changes, but the spirit of the HOEA is to make textbooks more affordable and purchasing more transparent. If that's really the end-goal, then forcing publishers to make that information public and consumer-facing should be the true requirement.

Until students have that, they're beholden to the professors (who may have ulterior motives) when making the purchasing decision.

milesskorpen• 13 years ago

The new text book thing isn't a requirement — but (a) professors get copies of the new books for free and (b) the publishers make just enough changes between editions to make it hard to use old versions (different question, vocab words, etc.), so that teachers prefer all students to have the same version ... and this is only an option for the new books.

Text books are somewhat irrelevant however — the Court upholding the first sale doctrine is fantastic, and hopefully will open the doors for lots more exporting / importing.

HarryHirsch2• 13 years ago

Publishers are merely exploiting the highly school-like nature of university education in the US. When I was in university, over in Europe, a long time ago, on the first day of lectures the professors would wheel in a cart of textbooks, saying these are suitable texts, go and pick the one that suits you best.

But in the US, students demand that their education is like high school, with a set text and all, and if the exercises in "Physics for Biologists", 9th edition are on a different page from "Physics for Biologists", 8th edition they complain. This is the root cause of the continuous revisions to undergraduate texts.

tjr2• 13 years ago

Taking university multi-variable calculus (in the US), I grew disappointed with the explanations in the prescribed textbook. They happened to be renovating the math department building that year, and some staff were dumping out old "evaluation copies" of various textbooks. I sorted through a pile of them until I found one that I liked better, and used it for the remainder of the class, doing similar problem sets to the ones assigned.

thedufer• 13 years ago

> students demand

What? I've never heard this particular demand (and I just graduated from a US college). Sure, students might complain about having the wrong edition - but only when lecturers assign work by page number, so that it becomes impossible to do it with the wrong edition. Do you have any evidence that this is the students' fault?

saraid2166• 13 years ago

> When I was in university, over in Europe, a long time ago, on the first day of lectures the professors would wheel in a cart of textbooks, saying these are suitable texts, go and pick the one that suits you best.

o.O Seriously? How have I never heard that this happens? That's ridiculously sane.

r00fus• 13 years ago

Or, publishers will take pains to make the Thai version incompatible with the American one (a much better implementation of region-coding).

If this case went the other way, it would have had all sorts of negative impacts to used item markets. I'm relieved the business-friendly supremes didn't cough up another loss for the consumer.

akiselev2• 13 years ago

It seems to me that this SCOTUS has actually had a pretty good track record on civil liberties and these underdog kind of cases (Citizens United notwithstanding)

readme• 13 years ago

The ruling is important because it's about "first sale" rights. It's about whether I can tell you what to do with my product, after it's left my hands and entered yours. Economic effects and hypotheticals aside.

http://en.wikipedia.org/wiki/First-sale_doctrine

jivatmanx• 13 years ago

Excellent for the native textbook industries of these countries.

sageikosa2• 13 years ago

But not necessarily for the students in those countries. Presumably low-cost and market-recognized quality are factors that have kept American textbooks in distribution in foreign markets (and domestic producers out of those markets). In their absence, one might think that prices will rise, quality will fall, or both; at least in the short run.

If these countries are relatively free of government collusion with established (or establishing) producers, then ultimately competitive pressures could rectify that as market demand gets satisfied; but in the short run prices up, quality down.

mjmahone17• 13 years ago

Alternatively, it's possible the American publishers wer effectively "dumping" their textbooks to prevent international publishers from ever being able to establish themselves.

DoubleMalt• 13 years ago

It is hard to overestimate the importance of this decision.

Had it gone the other way it would have been an utter disaster and contrary to every common sense

Still it concerns me that 3 judges sided with the publisher. In such a landmark decision even 6 to 3 seems to close a margin for comfort.

binarycrusader• 13 years ago

The supreme court does not "side with" any particular party (ideally); they "side with" a specific interpretation of the law.

If you read both the court's opinion and the dissenting opinion, you'll see that the dissenting opinion is strictly based on interpretation. The supreme court not only attempts to interpret how to apply the law, but determine what congress' intent was when enacting the law.

DannyBee3• 13 years ago

Actually, at least 2 justices specifically do not determine congress's intent, because they do not believe it matters.

If you look, you'll see they often specifically refuse to join in footnotes/etc that cite congressional intent or history.

tzs• 13 years ago

> Had it gone the other way it would have been an utter disaster and contrary to every common sense.

There is no "the other way", because they had more than just two options. For instance, they could have said that (1) when a copyright owner sells a copy in the US, first sale applies to that copy regardless of where that copy was manufactured, and (2) unauthorized import of a copyrighted work is a violation of the distribution right.

This would have had essentially no effect on first sale 99.9% of the time, without for all practical purposes eliminating 17 USC 602 (one can make a decent case that 17 USC 602 should be eliminated--but that is something for Congress to do, not the Court).

UnoriginalGuy• 13 years ago

The publishers will just make sure to produce a different textbook between different regions now. Just re-order the chapters a little and re-order some questions/assignments. So even if someone ships in the foreign book it will be as useless as a previous edition.

In general the whole textbook industry makes me sick. But fact is that lecturers are entirely responsible for it. The publishers can only do what the lecturers let them do, and either through apathy or greed the lecturers have shirked their responsibility to their students.

greenyoda• 13 years ago

The worst offenders are the professors who write their own textbooks (even though there are dozens of better ones already available) and then use them in their courses, making money off each student. Maybe there should be conflict of interest rules in universities.

The heroes in this game are the instructors who are creating open-source textbooks.

kyrra• 13 years ago

I had a professor that created his own textbook that he taught out of. His lectures were him writing the textbook on the whiteboard. This was a good 1.5 hour nap every tuesday/thursday.

slaxman2• 13 years ago

I don't think it is wrong for a professor to recommend his book for his course. But it is definitely wrong for him to force his students to use them. We had a lot of profs in college who had written books and recommended them. But if you attended the classes you really didn't require the textbooks in the first place.

mbreese• 13 years ago

I had a prof who wrote his own textbook and it was one of the best I ever had. It was sold at a little more than cost, so he made like $1 from each of us.

It all depends on the prof and the content.

zacksjoden• 13 years ago

In maths at my local community college the teacher made lesson plans for the 3 latest editions of the book, allowing students to be able follow along with whatever one they had/could afford.

sib• 13 years ago

I had a professor who was a co-author on the textbook that we used in his class. It was the "standard" work in the field, so it would have been ridiculous to use a different one. Nonetheless, he acknowledged the potential conflict, gave us an accounting of his earnings per copy (well under a dollar per), and bought food for the class out of his own pocket. Good solution, I thought.

claudius• 13 years ago

Isn’t it quite common nowadays for lecturers to just type up their lecture notes and make them available online (for free, obviously)? At least that’s what happened at the last two universities I attended, with other lecturers in the same department possibly reusing said notes. A few of such notes even made it to arXiv.

Of course, they will still suggest looking at some textbooks, but only on the rare occasion that they don’t want to include a proof or more information in the notes themselves - and then these books are naturally available in the library’s reference holdings.

nutmeg• 13 years ago

My university had a rule that textbooks written by the instructor had to be provided at cost. The instructor had hard copies available from the local print shop.

In another case, our professor contacted the author of the book and got cheap locally printed and bound copies. Something like $15 vs. $180.

SeanLuke• 13 years ago

This is far too unkind. Professors rarely make more than a pittance on their textbooks. They nearly always write textbooks because they need a textbook in a certain area and there isn't an adequate one. It is an extremely demanding task with little payoff. The ethical error the professor has made is not in making money off the student (he's not) but in choosing a publisher which charges ridiculous prices without thinking about how this impacts on his own students.

neilc• 13 years ago

The worst offenders are the professors who write their own textbooks (even though there are dozens of better ones already available) and then use them in their courses, making money off each student.

I think you are seriously overestimating the financial gains such a professor would make. I've taken several classes with profs who teach from their own textbook; the profit per book sold that a prof receives is usually minimal (either because the book is sold for near cost or because the publisher takes most of the profit). In fact, most such textbooks (essentially just rigorous lecture notes) are downloadable for free anyway.

If you want to make extra money as a professor, writing a textbook and then forcing it on a single class of students is about the least effective money-making scheme I can think of.

megaman821• 13 years ago

I have had several professors who taught course requiring their own textbooks. In every case though, the textbook was made available at printing cost or given away for free at a cost to the professor, since they also felt it was a conflict of interest to profit off their class requirements.

I would definitely drop a class where a professor started a semester by doing something so ethically gray.

potatolicious• 13 years ago

I had a prof that did this. Except he sold his book through the school printhouse for $25, when the competing alternatives where all $200+.

It was hand-bound by some poor soul in the printing office and was clearly churned out with a laser printer, but it got the job done and saved everyone a bundle.

If the prof made some money off of this, I'm fine with that.

khuey6• 13 years ago

At the university where I studied, the one course I took where the professor literally wrote the book had the book on sale at cost at the university bookstore.

kd0amg• 13 years ago

Maybe there should be conflict of interest rules in universities.

Where I studied (undergrad, at least), there were conflict of interest rules -- professors were not allowed to collect royalties on books they use in their classes.

driverdan• 13 years ago

I had a professor who wrote one of the books used in his course. It was sold at cost and he complained about the price (something like $15), wishing he could decrease it.

caseysoftware2• 13 years ago

Don't even bother reordering the chapters.. just change a few of the homework/exercises listed in the book. A cursory check will confirm to people that they have the same version and then it bites them later on.

At my undergrad, there were some profs concerned about files of old tests.. the obvious solution is to vary the test. The more subtle solution is to use the same test but switch which numbers are where. It still trips people's "I've seen this before!" feeling but if they try to memorize it, they're sunk.

usea3• 13 years ago

If the publisher did this, not only would they lose the sale at the higher price but they'd also cause confusion and mistrust among the students and teacher. There's zero upside.

impendia• 13 years ago

I am a lecturer in a math department. I also despise the textbook industry.

Would you please recommend what I might do, subject to severe limitations of (1) time and (2) political clout within my department?

EvilLook• 13 years ago

First, unless you are in a very specialized field, there are surely several books that cover the topic you are lecturing. In the interest of politics have an official book, but in the interest of time offer alternatives. Your students, or the good ones, at least, will be able to use whatever book they can fit in their budget, including previous editions. Especially if you're teaching calculus.

Second, if you are grading homework then produce your own problem sets. You already have to do this for exams, which means you know what you expect your students to learn, so you may as well produce the problem sets as well. At the very least indicate what types of problems a student should practice on so they can follow along in the book they do have.

Third, thank you for lecturing. I know that lecturers hate the raw deal with textbooks as well.

aspensmonster• 13 years ago

Tell your students not to purchase whatever books the department head has been bribed into using in the coming semester. Instead, spend a few hours curating online resources that may serve as notes for students; better yet, just photocopy the handwritten notes that every mathematics teacher I've ever had seems to have for each lecture they give :-) Otherwise, Paul's Online Math Notes tackles Calculus and ODEs, and IIRC gives an intro to PDEs as well. The students collectively save thousands of dollars in exchange for a few hours of your time spent photocopying notes or otherwise googling for a resource that you approve of.

Jach• 13 years ago

Is the purpose of the textbook for problem sets, or as reference? In either case, previous editions are often much less expensive than the most modern edition (sometimes the professor already owns the previous edition too). But if the purpose of the textbook isn't for the problem sets, then there are likely inexpensive or free (by author or by copyright expiration) books that are fine for the other purpose. (I have a liking for Schaum's Outlines that cover a nice spread of topics.)

I'd add that if cheating is a concern (whether from using books whose solution set is easily available, or using in-house solution sets that don't update with each year), then assign watching a previously recorded lecture (by the professor, or one of the excellent already available ones online) as homework, and use the in-class time to have quizzes, tests, or professor-assisted homework sessions. In addition to weeding out cheaters there's the benefit, if you believe Salman Khan, that such methods are probably better ways to learn the material.

Finally, it's not too time-consuming for a professor to scan the problem sets from the book and distribute them to the students. So long as the problems aren't highly specific to the text, the student ought to be able to solve them without the text. For many subjects there are lots of free resources out there to learn from.

diminoten• 13 years ago

In addition to the wonderful suggestions below, don't forget that most publicly available resources will (most likely) gladly accept revisions and expansions on topics that you don't feel are "up to snuff" for your class.

It's, admittedly, more work, but what good thing isn't?

Herring• 13 years ago

Math professors at my undergrad college used to buy old (cheap) editions in bulk and rent them out to students for a semester.

michael_miller• 13 years ago

Write up lecture notes, and design your own assignments. This is how a lot of my upper division math classes were setup, and the arrangement worked quite well. Textbooks are usually full of fluff not relevant to the class. Lecture notes, being designed by the person teaching the class, only contained material directly related to what was being lectured about / tested on. Of course, creating comprehensive lecture notes is not an easy task, but it's well worthwhile - write up your lecture notes once, and you can reuse them every year, without your students paying $100 for a textbook they'll never look at again.

abraxasz2• 13 years ago

The best class I've ever taken was an intro class in statistics, in which the professor recommended... no book. He had an entire set of notes, practice problems (with extraordinarily detailed answers), and problem sets. Every year, he creates new exam problems so the old exams with answers become practice material. Honestly, his lecture notes (and all the additional material) is so vast that a student would hardly have enough time to study anything outside the notes.

My point is, if a lecturer is really dedicated to providing the best possible experience to his students, he doesn't need a textbook. I'm not saying that it's easy, or that it doesn't require a lot of time and effort from his part. It does. Some lecturers chose to accept the load, while others go the easy way and just point to references and exercises in the book.

mindcrime2• 13 years ago

Unless you're teaching at the very cutting edge where new research is emerging regularly, (in which case I imagine you'd be teaching from your own notes and journal articles anyway), then how about just intentionally using an older text and write your own exam questions? There are usually plenty of copies of "recently out of date" editions of most texts on the second-hand market, and the fundamentals of the material probably haven't changed that much.

Or find one of the many "released free for use" maths texts[1][2] that are "out there" and see if one is suitable for your classes?

[1] http://people.math.gatech.edu/~cain/textbooks/onlinebooks.ht...

[2] http://www.reddit.com/r/mathbooks/

aaronwhite• 13 years ago

Hopefully some folks have heard of Boundless now, we make free e-textbooks out of open-source / public domain content and are now used by students at half of all universities.

We have a program to help educators quickly get up to speed using our content with minimal effort

https://www.boundless.com/educators/

pm90• 13 years ago

The most practical thing to do would probably be to start a book bank; or, just have the department library stock up on textbooks which can then be loaned to every class that uses it. Those that want to keep the textbook can buy their copy, but most, who just want to read the material for the course, will happily use it

phaedryx• 13 years ago

Not sure, but I think the solution in general is open textbooks, e.g.: http://utahopentextbooks.org/

With print-on-demand: https://www.createspace.com/Products/Book/#content6

mayneack• 13 years ago

MIT CS class (6.047) I just took had a mix between course notes and a textbook. It started as a compilation of course notes and then each year, was improved by the class. During each lecture, one or more people were assigned to update the relevant chapter of the book to reflect this year's lecture/changes in the field. Some chapters that were the core of the class or didn't change from year to year were really good and some were only a basic framework. He also recorded all his lectures, so that helped with any places where the book might not be ideally up to date.

http://compbio.mit.edu/teaching/book.pdf

darkarmani2• 13 years ago

> The publishers will just make sure to produce a different textbook between different regions now. Just re-order the chapters a little and re-order some questions/assignments. So even if someone ships in the foreign book it will be as useless as a previous edition.

That's fine if they do that. That's what they should have be doing all along instead of trying to destroy the first sale doctrine using foreign distribution.

stephengillie• 13 years ago

I've had professors who told us "If you have the regular textbook, read section 1 from chapter 4. If you have the international version, read section 1 from chapter 7", as they're the same chapter.

shardling2• 13 years ago

>either through apathy or greed the lecturers have shirked their responsibility to their students.

This "greed" idea is just not a thing. It's a meme that's repeated in places like HN, but not something that really exists out there in the real world. There'll be isolated cases, but it's not even a little bit relevant to a discussion of why textbook industry is able to extort students.

In so far as profs. are responsible for "collaborating" with the industry, it's because of inertia, and a poor understanding of the alternatives. And probably also laziness. :)

baddox• 13 years ago

That's already what a lot of "new versions" of textbooks are. When I was in college studying Computer Science, students would often resell their textbooks to students from the incoming class, and whenever the department officially switched to the new version of the text, the teachers would quickly find the very small differences (slightly different page breaks, reordered problem sets, etc.) and include both versions in their assignments.

wmil• 13 years ago

There's a much simpler way. Use the health code.

Include a useless, but harmless, insecticide in the paper of international editions to "fight bookworms". Then lobby to get insecticide books banned domestically due to "potential health risks".

kbutler• 13 years ago

This will push textbooks more heavily toward digital distribution, where the content will be "licensed" to an individual user, without resale rights.

While I applaud digital distribution, the lack of consumer rights comparable to the first sale and fair use doctrines is a large and growing problem.

dublinben• 13 years ago

The only saving grace of digital distribution of textbooks is that it (often) allows easier pirating. The availability of inexpensive used textbooks is less crucial if free PDFs are available.

dubya• 13 years ago

The publishers are already pushing bundled grading systems with their textbook. You get the textbook and also a login key so you can submit homework and quizzes online. I don't know how widespread it is yet, but I suspect many service courses at state schools will adopt it soon.

arikrak• 13 years ago

This is good news. Publishers charge US students much more than students in other (even high-income) countries. At least they shouldn't be able to legally prevent people from buying international edition books. The publishers often change the questions in those books, but there are ways to deal with this.

The old-textbook publishing market will probably decline in the near future as people move to digital and interactive options. This will be a big improvement, but the publishers will once again have control. There will be many free options available though.

chaddeshon4• 13 years ago

It is great that students will be able to get cheap text books. But, are we not concerned that the court seems to be throwing out a law passed by Congress in an area where the Constitution grants them explicit power to act merely because they think the law is a bad idea?

Title 17 of the U. S. Code Section 602(a)(1) “Importation into the United States, without the authority of the owner of copyright under this title, of copies or phonorecords of a work that have been acquired outside the United States is an infringe- ment of the exclusive right to distribute copies or phonorecords under section 106, actionable under sec tion 501.”

freehunter2• 13 years ago

That's the whole point of the Supreme Court and of the balance of powers. Congress is free to pass whatever law they want, it's up to the Court to decide if the law is valid or Constitutional. If the Court thinks the law is a bad idea, they're free by all means to throw it out, that's the reason they exist.

rayiner2• 13 years ago

"It's a bad idea" is a very different thing than "it's unconstitutional." It shouldn't even need to be said, but this is a mistake that is pervasive on HN.[1] There are infinite shitty ideas that are nonetheless Constitutional.

The Court is empowered to throw out unconstitutional legislation. It is not empowered to throw out Constitutional legislation that happens to be a bad idea.

[1] On everything from campaign finance to drone strikes, nobody bothers drawing the very important distinction between "bad idea" and "unconstitutional."

danielweber• 13 years ago

Congress should not pass laws it believes are unconstitutional, and the President should not sign laws he believes are unconstitutional. They are abandoning their duties by leaving the question up to the Supremes.

(According to insiders from the administration, Bush thought the campaign finance law he signed was unconstitutional, but he punted the unpopular job to the Supremes.)

SEMW7• 13 years ago

Having briefly skimmed the Opinion[1] (IANYAL), the heart of it was an exercise of close statutory interpretation to try and figure out exactly how s. 602 interacts with s. 109, with the majority concluding that as s. 602 refers explicitly to the s. 106 exclusive distribution right, it's subject to the same limitations as s. 106 is, including s. 109's First Sale limitation. (So s. 602 then just has the effect that the act importing an unauthorised copy into the US is an infringement of copyright). [Edit: My mistake - that finding was actually unanimous. The 3 dissents were only dissenting on the interpretation of "lawfully made under this title" in s. 109]

That's clearly not the only possible reading - 3 of the justices came to a different conclusion. But the idea that a court giving giving a reasonable interpretation of a mildly ambiguous statute is "throwing out a law... merely because they think the law is a bad idea", just because another interpretation is possible, is nonsense.

[1] http://www.supremecourt.gov/opinions/12pdf/11-697_d1o2.pdf

chaddeshon4• 13 years ago

Thanks for that explanation. I hadn't had time to read the whole opinion. Perhaps my statement came off too harsh. I am nothing close to a lawyer, but I found the "parade of horribles" to be a little troubling. Shouldn't the Congress be the one evaluating the consequences on the law? I guess the counterargument is that those things are so horrible that we can assume that isn't what Congress meant.

When reading Supreme Court opinions, I am often blown away by the well reasoned, logical arguments, that support findings I disagree with. You can disagree, but you can't say they don't have some facts and logic to stand on.

If you've never read an actual Supreme Court opinion, I would highly encourage you to do do. The linked article here is just awful. It doesn't even provide the case name. The opinions are surprising easy to read, and flow pretty well. The language isn't difficult, and they can be surprising humorous. If you can make it through a C++ book, then you'll have no problem understanding the basics.

yew• 13 years ago

They are 'throwing out' the law because it violates the first-sale doctrine, which has substantial legal force. The court simply has differently (and explicitly so) interpreted "under this title." Pay attention to the reference to 106 in particular.

andrewpi• 13 years ago

SCOTUSblog analysis: http://www.scotusblog.com/2013/03/opinion-analysis-justices-...

ISL• 13 years ago

Grouping useful stuff together:

The opinion itself: http://www.supremecourt.gov/opinions/12pdf/11-697_d1o2.pdf

The dissent is perhaps most interesting.

CamperBob25• 13 years ago

I just love circular reasoning like Ginsberg's. "We should decide this case in Wiley's favor because it's the official policy of the United States to support similar provisions in international agreements." Then, when it's time to negotiate the next ACTA framework or WIPO treaty, we'll fall back to, "Hey, US law works this way, and look how successful it's been for us. Wouldn't the rest of you benighted nations like to enjoy the fruits of our maximalist copyright regime as well?"

WildUtah3• 13 years ago

The older case Costco v. Omega was decided in an unsigned, unexplained per curiam decision. No one outside the court knows which four were on each side.

Breyer won six votes for his strong pro-competition, pro-market, IP moderate position.

Remember that in Eldred v. Ashcroft (q.v.) Breyer wrote one of two vigorous dissents against the essentially permanent copyright terms now in force. Former justice Stevens was the other.

Stevens was also joined by Breyer in the split decision in Bilsky where they won four votes (with Ginsburg and Sotomayor) for serious restrictions on patents for software and business methods and possibly total exclusion from patentability for those arts.

In short, Stevens was a great loss and Breyer is still a national treasure. Let's hope we get more like them and fewer like Kennedy, who always seems to be on the wrong side of IP cases. (Alito, Roberts, and Scalia are very bad, too, but haven't been as consistent trying to destroy our industry as Kennedy.)

tanzam752• 13 years ago

Stevens was replaced by Sotomayor, who also voted with Breyer in this case.

However, it is certainly true that a junior Associate Justice is not exactly a one-for-one replacement. Stevens' seniority and eloquence gave him an influence that will be hard to match.

Ironically, when he first came onto the Court, Stevens was not regarded as a particularly effective Justice, because he wasn't a team player. Perhaps it simply takes time. And in that sense, perhaps we're better off having Sotomayor in place earlier, rather than having Justice Stevens try to serve for a few more years.

socalnate1• 13 years ago

This is fantastic news. Had the court ruled differently, the first sale doctrine would have been in doubt, which could have destroyed ebay, craigslist, garage sales and nearly anything that involves reselling a good.

antiterra2• 13 years ago

The case involves textbooks, but it's not really about textbooks. Instead it's about what "made lawfully under this title" means in the context of first-sale of physical items.

Under one interpretation, if you buy a book outside the US, your ability to resell it in the US without permission depends on whether or not the book was made in the United States.

Under the other interpretation, "lawfully made under this title" means more that the making of the item itself was within the legal construct of copyright. That is, not pirated or counterfeit.

This second interpretation is what the majority opinion espouses, and the dissenting opinion aligns with the first.

This may be unsatisfactory for people concerned with software or e-book licenses, but Omega v. Costco might have come out differently if this had been decided beforehand. In that case, Omega sued Costco for reselling watches because they registered a copyright* for a logo on the back of the watch. Omega claimed that Costco had no first-sale protection from copyright since the watches were not made in the US. The 9th circuit agreed, SCOTUS split 4-4 (Kagan self-recused) and the 9th circuit stood.

The majority opinion implies that it's perfectly fine to fly to a foreign country, purchase legitimately sold watches, toasters, electric kettles, and books and bring them home for sale. (Subject to applicable duties, etc.)

Yes, manufacturers will probably not just throw their hands up and give up on price discrimination. I have no idea what they will do. But the profits from Country X still might trump any loss of profit/image due to importation and resale in the US.

Scrambling chapters in textbooks might work, but then they lose some efficiency and flexibility, for example: the option of liquidating inventory to a low-margin market when a new edition comes out in the US at a higher profit margin.

* Generally brand logos are trademarked, but they can sometimes also be copyrighted. It's a little muddy, and arguments exist whether or not, say, Mickey Mouse could become/remain a trademark after the copyright protection expires.

EDIT: To clarify what I meant by "I have no idea what they will do": I am not entirely without ideas of approaches companies could take; the suggestions in other reply threads here are definitely candidates. I just don't think I can predict the specific action[s]. Maybe 'all of the above' for some, maybe the status quo for others.

digikata• 13 years ago

You already have the answer to what a publisher might do in your post: lobby for the imposition of duties on imported copyrighted material (or a narrower description as fits the market they're trying to protect). I'm not agreeing with that approach, it just seems likely.

roc2• 13 years ago

> "I have no idea what they will do."

Stall. Send out some FUD. Maybe lobby for higher duties (as compared to tariff rates).

But most of the goods that have sufficiently large price discrepancies are going to a digital manifestation anyway.

So region-coding, DRM and the DMCA will (continue to) be the order of the day.

tanzam752• 13 years ago

> Maybe lobby for higher duties (as compared to tariff rates).

Not sure I see the distinction. According to the WTO, "customs duties on merchandise imports are called tariffs."

Shinkei• 13 years ago

Great analysis... so would you say this is generalizable to region coding issues? Because first-sale doctrine should protect my ability to buy a DVD in China and use it/sell it in the US. Would region-free players also be protected?

antiterra2• 13 years ago

You've gone a bit too far with the scope. This is about legitimately produced physical manifestations of works protected under copyright. Your average toaster is likely not protected by copyright, but if the toaster company engraves a poem onto the side, suddenly it may be.

It's also only about the exhaustion of the distribution right of the specific item that was purchased. It has nothing to do with a right to copy or circumvent access/copy protection etc.

Therefore, region free players have nothing to do with this whatsoever, unless, perhaps, they have a copyrighted work painted on them or something.

As for DVDs: Theoretically, if you managed to find a legitimately produced DVD in China (made with the rights holder's permission) you could bring it back to the US and sell it.

Whether or not you can legally play that DVD in the US on any particular player is an entirely different and more involved question involving a bunch of DMCA caselaw.

nitrogen4• 13 years ago

It's interesting that the Omega watch case had a 4-4 tie in the SC while this decision was 6-3. Does this mean that Costco can start importing cheap watches again?

https://en.wikipedia.org/wiki/Omega_S.A._v._Costco_Wholesale...

WildUtah3• 13 years ago

Costco won in district court on remand. The theory was that even if it was infringing copyright, using copyright to block physical goods was an abuse of copyright.

So Costco still won in the end.

Omega was appealing the decision last I heard.

Cr_ppy Omega watches are overpriced anyway.

khuey6• 13 years ago

Seems like this precedent should make Omega's appeal that much harder.

shrikant• 13 years ago

I really liked this bit from the decision:

> Third, Wiley and the dissent claim that a nongeographical interpretation will make it difficult, perhaps impossible, for publishers (and other copyright holders) to divide foreign and domestic markets. We concede that is so. A publisher may find it more difficult to charge different prices for the same book in different geographic markets. But we do not see how these facts help Wiley, for we can find no basic principle of copyright law that suggests that publishers are especially entitled to such rights.

FINALLY! Someone's finally seen what Robert Heinlein wrote in Life-Line and essentially just paraphrased it:

> There has grown up in the minds of certain groups in this country the notion that because a man or corporation has made a profit out of the public for a number of years, the government and the courts are charged with the duty of guaranteeing such profit in the future, even in the face of changing circumstances and contrary to public interest. This strange doctrine is not supported by statute or common law. Neither individuals nor corporations have any right to come into court and ask that the clock of history be stopped, or turned back.

hub_• 13 years ago

That's why the content industry pushed for the DMCA and used that in the case of the DeCSS case: DMCA as a mean to protect market protection like DVD region encoding.

The problem with physical books is that they can't do it. The know it, the court knows it.

jlgreco2• 13 years ago

Presumably however this means that buying both your DVDs and your DVD player from another region is now unambiguously legal. (IANAL)

vilhelm_s• 13 years ago

That's an interesting point. A major complaint about DMCA has always been that it allows copyright owners to criminalize otherwise legal acts by adding DRM. But the usual examples have always been fair use rights, like making quotations, or researchers and libraries trying to preserve historical documents. Those uses have always been "collateral damage", which the copyright owners didn't wasn't specifically interested in preventing.

But with this ruling, it is now clear that the thing that region codes aim to prevent would be completely legal except for the DMCA's circumvention provision. So in some sense, this is a much more blatant example of copyright owners writing their own laws.

spullara• 13 years ago

This could definitely accelerate the move to non-resaleable ebooks to the detriment of students.

isb• 13 years ago

Why can't they apply similar interpretation to legalize re-importation of drugs? The arguments there are similar ( "drugs are expensive in US to subsidize foreign markets").

This is also another blow to the academic publishing racket. In response, they might stop publishing cheap international editions. I hope the availability of high quality open source textbooks and material from MOOCs will cause the developing world to adopt them instead. However, there is a chance that pirated copies - either digital or facsimile copies of US editions - will flood the asian markets. This already happens today but at a small scale.

auctiontheory• 13 years ago

In the bookstore of my local community college, I saw the required intro calculus text selling for around $140. That is wrong in so many ways.

And it's instructive to contrast textbook prices with the very reasonable student discounts on software. Software labels are trying to create customers for life, while book publishers are price gouging while they can.

pflats• 13 years ago

I'm not a huge international policy wonk, but I don't get how these suits (this one and Omega vs. Costco) reconcile with the rules of the WTO (of which the US and Thailand are charter members).

Doesn't the National Treatment Policy state that imported goods shouldn't be treated differently than locally-produced ones? And doesn't restricting the first-sale doctrine on imported good break that very rule?

I'd love for someone to explain how this relates to international law that we're supposed to be following. I'm always curious abou this stuff, and I can't find anything good in my Google searches.

(I realize that the WTO is rather toothless, but still.)

jared314• 13 years ago

I'm not sure why so few people link to the real content.

Oral Argument recordings:

http://www.supremecourt.gov/oral_arguments/argument_audio_de...

Opinions:

http://www.supremecourt.gov/opinions/12pdf/11-697_d1o2.pdf

protomyth• 13 years ago

If you listen to the oral arguments http://www.supremecourt.gov/oral_arguments/argument_audio_de... , I get the feeling the resale of cars weighed a bit on decision:

"A geographical interpretation would prevent the resale of, say, a car, without the permission of the holder of each copyright on each piece of copyrighted automobile software. Yet there is no reason to believe that foreign auto manufacturers regularly obtain this kind of permis sion from their software component suppliers, and Wiley did not indicate to the contrary when asked. See Tr. of Oral Arg. 29–30. Without that permission a foreign car owner could not sell his or her used car."

smsm42• 13 years ago

I feel glad and sad in the same time. Glad because first sale doctrine survived, and sad because it could very well not. The whole matter that first sale doctrine disappears as soon as you cross borders sounds ridiculous - the practice of manufacturing goods cheaply at one place and sell them in another is an extremely common practice, and there's absolutely zero reason for books to be except from it.

brownbat• 13 years ago

Roberts and Sotomayor on one side, Scalia and Ginsburg on the other. Not really a right/left split.

If you had to draw some line, you might notice that the dissenters, Ginsburg (80), Scalia (77), and Kennedy (76), are the oldest on the bench.

I wouldn't read too much into that, just thought it was interesting. We probably already make too much of the "right/left" line in the court, since cases like this--where people don't cleanly line up according to political ideology--are fairly common.

qwertzlcoatl• 13 years ago

Small victories are victories none the less.

The fact that this had to come up as a question to begin with demonstrates a critical flaw in our system. A Flaw with IP law, and with the ability of high dollar interests to influence our government.

ChrisNorstrom• 13 years ago

Am I the only one that disagrees with the decision? Correct me if I'm wrong:

So imagine you're a publisher and you sell a math book in the USA for $60 and in a 3rd world country for $20 so that more people can afford it and you can establish a presence there.

Is it fair for people from that 3rd world country to sell the book back to the USA and for you to miss out on your profit?

I know most of us here love having the freedom to do whatever we want but we need to look at the RESULT of the decision, not the EMOTIONAL return of the decision. Sure it makes us feel good to know we can sell what we want to where-ever and whom-ever we want. But what if the result of that action is a bad thing?

I think it's quick sales like this that will push more publishers to:

1) Move towards digital only distribution with heavy DRM.

2) Increase prices in the USA to make up for the loss in profit.

3) Increase prices in other countries to discourage the overseas exporting.

4) Retract themselves entirely from smaller markets.

Am I missing something, or not seeing the benefit? Seriously critique my thoughts, I want to see both sides to this.

sonabinu• 13 years ago

As a student, I feel text books are priced way too high. If the international version is just a few dollars less that the one sold in the US, no one is going to go searching the web for a cheaper book. The problem is that the price variance is too much and these are required text books. I sometimes spend hours to look for a used text book that is cheap. If I sold my used text book, I will get a max of 5 $ from a text book vendor but to buy it back is around 50 $. It is always the student who seems to be at the losing end.

cbs• 13 years ago

Is it fair for people from that 3rd world country to sell the book back to the USA and for you to miss out on your profit?

The law should only be concerned with fairness insomuch as it informs "right vs wrong". Nobody is entitled to a business model.

mpyne• 13 years ago

> Is it fair for people from that 3rd world country to sell the book back to the USA and for you to miss out on your profit?

Yes, and no better reasoning is required other than "It's my book now and I'll do whatever the fuck I want with it."

If you restrict what people can do with their own stuff just because of the indirect effect on a current business model then you'll simply snuff out other (better) business models.

Free and open-source software may have never become popular if MS had been able to complain that it was eating into their business model and affecting their ability to "give away" software to universities and schools, and that's just one example.

jeffdavis• 13 years ago

"Am I the only one that disagrees with the decision? ... we need to look at the RESULT of the decision"

That is not the job of the Supreme Court. They are supposed to decide based on what the law says, regardless of the result. If you disagree with the law, then write to Congress.

But it's fair to ask whether this will produce better or worse results. It's a good observation that this will cause publishers to shift out of poorer markets and increase the use of DRM[1].

The previous situation was not perfect though, either. To interpret that statute geographically would be a major restriction on trade; and if not, would create a lot of ambiguity. Nobody wants to purchase something from another country if they are worried that the manufacturer will come in later and take it away because it had some copyrighted design (which could be anything) on it somewhere.

I believe the results will be better overall (by a lot) under the new interpretation of the law. Clarity and simplicity about where you stand as the owner of property is incredibly important.

One way to think about it is that nothing has changed. The publisher can still create a contract with the buyer that says they won't resell it in another region. It's just that the "default" purchase contract does not give the publisher that right. And we should make defaults match expectations as closely as possible, otherwise people are entering into contracts they don't understand. The notion of purchasing a product has many expectations that go with it that have been developed over millennia. To allow the publishers to inject extra terms that contradict those expectations just to fit their particular business model is ridiculous.

[1] Though DRM wouldn't be nearly as bad if there were no DMCA and if the sellers were forced to call it "licensing" rather than "buying". Again, the default purchasing contract should match the expectations of both parties.

Supreme Court sides with student in case over textbooks

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