Used Software Can Be Sold, Says EU Court of Justice

[TaoPhoenix]

I was just reading the following yesterday:

  Misinterpreting Copyright - A Series of Errors

I haven't verified the points made in the piece, but it has sparked my interest to investigate further.

As I understand it, the piece has mostly to do with the U.S. -- don't have any clue about other countries.

-ewemoa (July 04, 2012, 11:28 PM)

But look at the bottom:
"Copyright © 2002, 2003, 2007 Free Software Foundation, Inc.

This page is licensed under a Creative Commons Attribution-NoDerivs 3.0 United States License. "

So it's simultaneously copyrighted and THEN licensed as Creative Commons!?

[app103]

So it's simultaneously copyrighted and THEN licensed as Creative Commons!?

-TaoPhoenix (July 07, 2012, 04:39 AM)

Attaching a CC license to your work in no way forces you to give up your copyrights.

With a Creative Commons license, you keep your copyright but allow people to copy and distribute your work provided they give you credit — and only on the conditions you specify here.

-http://creativecommons.org/choose/

[tomos]

Going hypothetical for a moment, if you buy the software in the USA, (physical/downloaded), and then sell it in the EU - is it illegal ?

-4wd (July 06, 2012, 09:12 PM)

you (someone) could make a bit of money like that - e.g. adobe software is a lot cheaper in the states.

completely off-topic: Adobe & maths

Okay, I'm very off-topic here, but I actually just got an offer of a large discount on adobe products, so I checked out some prices (euros converted to US dollars):
e.g. Acrobat X Pro
adobe.de = $817 for disk (inc. 19% vat - delivery free)
adobe.de = $844 for download (inc. 19% vat)
NOTE: that makes the download $27 more expensive than the CD delivery
adobe.com = $449 - if I add the 19% vat it becomes = $538

so, even including taxes on both, the adobe.de download is $306 more expensive than the US one. Or roughly 56% more expensive.
I usually try to avoid this topic cause I dont like hating, but that's what I end up doing. I cant afford this, but even if I could, I find it so offensive, I wouldnt...

[IainB]

@tomos: I'm not so sure the "Adobe & maths" you provide is as completely off-topic as you seem to think.
The sort of obscene (read "profiteering") price-differential you refer to is usually the result of unfair pricing practices in a supply-chain controlled by monopolistic suppliers or their agents. Such practices are usually illegal inside most Western economies, but not necessarily between them - e.g., they seem to be common in otherwise unregulated "free trade" international transactions.
In fact, you theoretically (and usually in practice) couldn't have such obscene price differentials unless there was such a practice or supply-chain in operation.

The right to be able to sell "used" or pre-owned software is just a digital version of you exercising your existing right to sell (say) a piece of furniture that you had bought but might no longer want - that is what this EU Court of Justice decision confirms.
It's your property (as per Locke's definition), after all.
Similarly, the idea of selling music tracks on mp3 files. If you got tired of your old vinyl LPs or cassette tapes, then you could always sell them. They are your property.
Hmm...now, about ebooks...?   

You always know there is probably some kind of monopolistic, profiteering or restrictive trade practice in play the moment someone or something (e.g., statute or local bye-law) tries to block you from selling what is legally your property, or where you can only obtain the purchase of a property through specific and artificially highly-priced agents.
Price-rigging and cartels (price-fixing agreements between suppliers) are monopolistic and usually illegal, but are common - they keep popping up.
It really does seem that you can't keep a good idea (for profiteering or ripping-off other people) down.   
(Libor rate-fixing would seem to be the latest "exposure" of this - it's apparently epidemic and systemic in the financial system.)

This EU Court of Justice ruling on used software helps to redress the balance on the consumer's behalf.
That's two (i.e., that and the rejection of ACTA by MEPs) eminently sensible things to have come out of the EU inside the last 30 days from unelected representatives. That must be a record achievement. One could arguably have been most surprising. Two could be amazing.   

[app103]

Going hypothetical for a moment, if you buy the software in the USA, (physical/downloaded), and then sell it in the EU - is it illegal ?

-4wd (July 06, 2012, 09:12 PM)

you (someone) could make a bit of money like that - e.g. adobe software is a lot cheaper in the states.

-tomos (July 07, 2012, 05:43 PM)

You might want to hold off a few months before deciding to get into that line of business, at least here in the US.

Supap Kirtsaeng was a student that discovered that the textbook publishers were selling the same books in other countries much cheaper than they did in the US and decided to start a business, having his family buy and ship textbooks from Thailand to the US, which he sold on Ebay, for a profit.

When he was sued by a publisher, who claimed what he was doing was copyright infringement, he ended up losing the case when a judge decided that the First Sale doctrine only applied to goods sold in the US that were manufactured for the US market.

His appeal will come up in front of the Supreme Court this fall, and the decision they make could have some far reaching implications concerning the resale of used copyrighted goods manufactured overseas (think used cars whose computer systems contain copyrighted software written abroad.) and libraries lending foreign books they may have stocked on their shelves.

http://chronicle.com...ll-Hear-Case/131568/

[IainB]

...
...Supap Kirtsaeng was a student...
...

-app103 (July 08, 2012, 02:25 AM)

What an interesting case...
Looks like it's time for a law change if you want to protect the US consumer from being ripped off through unfair commercial practices.
Probably need to wait for pigs to grow wings first though...

[IainB]

Interesting analysis of the Wiley v. Kirtsaeng case in onlinecolleges.net: Supreme Court Considering Ownership of Textbooks

Spoiler

Supreme Court Considering Ownership of Textbooks
by Alex Wukman
July 9, 2012

The math never really works out. The book costs $150 at the start of the semester, but the campus bookstore will pay less than half at the end. There might be a better price across town, or it might just be a waste of gas. In an attempt to help students get the most from the books, and streamline the process of selling textbooks, retailers and tech startups are taking book listings from flyers tacked to the wall to iPhones and iPads.

Jupiter, Fla. based Buy Back Textbooks unveiled a new Apple app that allows students to scan a book’s barcode and determine which store is offering the most money for that edition and online book buyback company MyBookBuyer.com recently added the one millionth title to their purchase list. While this may be good news for students, it couldn’t come at a more difficult time for the secondary textbook market.

Within weeks the U.S. Supreme Court will hand down a decision in a case that debates the very nature of ownership. The case concerns a relatively little-known provision of the copyright code called the “first-sale doctrine”. The “first-sale doctrine” is the provision of the copyright code that allows for the resale of copyrighted material without having to secure permission from the copyright holder, because the copyright holder can only control the first sale of the material.

The first-sale doctrine has been recognized by the Supreme Court since 1908. In 1998 the Court ruled that the first-sale doctrine applies to copyrighted materials that originated and were sold in the U.S., even if that first sale was made internationally and the product was then legally imported back into the U.S. The case before the court now concerns copyrighted materials that have a U.S. copyright, but were never intended to be sold domestically.

In this case it’s the international editions of college textbooks, which are often significantly cheaper, than U.S. editions, that are being discussed. A Government Accountability Office (GAO) report found that the cost of the U.S. editions of textbooks rose 184% between 1986 and 2004, or triple the rate of domestic inflation, whereas the cost of international editions of the same books remained relatively flat over the same period.

The GAO concluded that the only way the massive price discrepancies could continue to exist was if there are barriers to the mass importation of international textbooks that “insulate students” from the price differences in other countries, which is what led Supap Kirtsaeng to the import business. In the late 2000s, Kirtsaeng was a graduate student at the University of Southern California pursuing a Ph.D. in mathematics, and when he saw the price differential between the U.S. version of a textbook and the international version he hit on a novel way to make money. He’d have his family in Thailand send him the books and he would sell them to other students.

It wasn’t long before his actions got the attention of the textbooks’ manufacturer John Wiley & Sons, Inc. Wiley, a $1.7 billion company, sued Kirtsaeng for violating their copyright by illegally selling the international editions. A New York District Court found that Kirtsaeng had violated Wiley’s copyright by selling $37,000 worth of illegally imported books. The court ordered Kirtsaeng to pay $600,000 in damages and attorney fees to Wiley.

In a judgment that some observers found to be overly broad, visiting Judge Donald Pogue ruled that any product manufactured abroad—for example an iPhone or an iPad—is exempt from the first-sale doctrine. In his ruling, Pogue stated that the lack of clarity in the case law, and the exemption of foreign manufactured items from first-sale doctrine, could create some unforeseen problems. One of the hypothetical situations Pogue envisions is U.S. firms increasingly offshoring their manufacturing. He went on to state that the lack of clarity in the law must be addressed by Congress.

Kirtsaeng appealed, and the judgment was upheld in the Second Circuit court. Because of the wide-reaching implications of defining ownership based solely on point of origin, the case has drawn the attention of a wide swath of copyright watchers from the Electronic Frontier Foundation to the American Free Trade Association, both e-bay and the American Libraries Association have submitted friend-of-the-court briefs in support of Kirtsaeng.

The uncertainties of ownership being deliberated by the Justices are not just limited to physical products manufactured overseas. A federal district court in New York recently issued a default judgment in favor of John Wiley & Sons which had brought suit against Robert Carpenter, a Poughkeepsie, N.Y. resident who had shared a copy of Wiley’s book WordPress All-in-One For Dummies over the popular streaming site BitTorrent.

Judge William Pauley ordered Carpenter, who failed to appear in court, to pay $7,000 in damages to the publisher for infringing both Wiley’s copyright and trademark. The inclusion of trademark infringement raises the case from a copyright violation to the realm of counterfeiting, which may mark the first time that a digital copy has been found to be an imitation of a physical object.

Carpenter’s was the first case of over a dozen mass lawsuits Wiley filed against BitTorrent users in October 2011 that saw the inside of a courtroom. In the filings the publisher alleged that some of its titles, including the one Carpenter downloaded, were shared over 70,000 times by hundreds of users. In order to proceed with the case, Judge Pauley has repeatedly allowed Wiley’s attorneys to subpoena internet service providers for account holders’ personal information.

In a statement to internet publication Torrent Freak, Wiley’s attorney, William Dunnegan, described receiving access to the personal details of those who allegedly downloaded copyrighted material as “one of the main goals” of the legal campaign. Dunnegan went on to state that Wiley is primarily interested in resolving the cases through out of court settlements, a tactic which keeps the amount of money the publisher receives from each settlement confidential. However, some estimates have put the amount Wiley has received as high as $1 million.
Follow Alex Wukman on Twitter @AlexWukmanCMN

[Carol Haynes]

If you have uninstalled and not using it anymore that already exists, 'legally'. I know of at least one example, Rosetta Stone, email them the deactivation code. They have no way of knowing if the other person using it after you have uninstalled didn't pay you for it.

-rgdot (July 03, 2012, 10:28 AM)

Try telling any of the major games manufacturers this!