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KA9LCF > NEWS 21.10.12 19:32l 141 Lines 5034 Bytes #999 (0) @ ALLIN
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Subj: ARN: Legal Wrangling
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Sent: 121019/0458Z 39104@KA9LCF.#NEIN.IN.USA.NOAM [170188]FBB7.01.35 alpha $:39
From: KA9LCF@KA9LCF.#NEIN.IN.USA.NOAM
To : NEWS@ALLIN
LEGAL WRANGLING: SUPREME ASKED TO RULE THAT PUBLIC HAS NO
RIGHT TO RESELL OWNED GOODS
How would you feel if there was a law that kept you from
selling or even giving away a piece of ham gear or anything
else you think you own without first getting permission from
the original manufacturer? Sound crazy? Well this is a
legal precedent that the United States Supreme Court has
been asked to rule on as we hear from Amateur Radio
Newsline's Mark Abramowicz, NT3V:
--
Imagine, if you possibly can, the Dayton Hamvention, the
Orlando Hamcation or the Huntsville Hamfest with no flea
market.
Or, what about ham gear disappearing altogether from eBay or
Craigslist.
Some fear this could be a real possibility, depending on how
the U.S. Supreme Court rules in a case that could impact a
nearly 104-year-old doctrine recognized by the high court
that allows us to resell items without fear of a copyright
holder coming after us.
The doctrine essentially says the copyright holder had
control only over the first sale.
But a case decided last year in the U.S. Court of Appeals in
the Second Circuit in New York has the potential to re-set
that doctrine.
The case involves a man from Thailand who came to the United
States in 1997 to enroll in Cornell University in Ithaca,
N.Y.
The student found that the same textbooks they were asking
him to buy in the book store could be had for much less in
Thailand.
The man asked his relatives there to help him buy the books
and send them back overseas to him in New York.
Later, the man got some entrepreneurial spirit and court
documents in the case show he decided to start selling
textbooks on eBay. There's some dispute as to how much the
man made on the sales.
So, the publisher of the books objects and brings a suit
against him.
The publisher admits it was charging less for books sold
overseas, but it claims the man was guilty of copyright
infringement. But the man counters his sales are covered by
that first-sale practice.
The federal appeals court in New York upheld a lower court
decision saying, no, that doctrine only applies to stuff
produced in the United States and not to anything made
overseas.
That court's ruling, in the view of some constitutional
scholars, could now throw into jeopardy the whole idea of
what you buy at flea markets, or yard sales and on-line
sales of used goods.
Polk Wagner, a law professor at the University of
Pennsylvania Law School here in Philadelphia, isn't ready to
push the panic just yet with that conclusion.
Wagner says in this case, it's about copyrights...
"So the question here that the Supreme Court has got to
wrestle with is to try and figure out how these two
provisions of the copyright act - one that says that you
can't import anything that's copyrighted without the
permission of the copyright owner and also one that says
lawful owners of books are allowed to do what they want with
the copies of the books that they purchase," Wagner says.
He says there's a bit of conflict here...
"So, the legal question is how those two provisions of the
Copyright Act work together or don't as the case may be,"
Wagner says. "Courts have wrestled with this for the last 5
or 10 years and have not reached any satisfactory
conclusions. So, hence, the Supreme Court is going to take
it up."
eBay has filed a brief on the issue warning that the Second
Circuit's ruling would have significant consequences for
trade and ecommerce. And, in a broader reach, the company
says it could hurt small businesses and consumers and cost
jobs in the U.S.
Wagner, the University of Pennsylvania law professor, says
there's another area and it may involve patents.
For example, he says in cases involving ham gear, it's legal
to buy overseas and import the gear. And, there's nothing
under the patent laws that prevents you from reselling the
gear.
However, Wagner says there's another matter and it has to do
with software that may be included or needed to operate the
gear.
And, while most companies or software developers will sell
you a license to use their software, it's not the same thing
as selling you a book. And, while Wagner says that's not at
issue here it eventually it could be sorted out by the
courts in the future.
Stay tuned.
For the Amateur Radio Newsline, I'm Mark Abramowicz, NT3V,
in Philadelphia.
--
The Supreme Court is scheduled to hear oral arguments on the
case on October 29th. If it does rule with the appellate
court, it's likely that the matter would be brought to
Congress to force a change in law. However that could take
months if not years or even decades. Until then,
consumers, including ham radio operators would be stuck
between a rock and a hard place when trying to resell their
belongings without breaking the law.
(Marketwatch, other published reports)
Editors note (KA9LCF): This is very interesting, and why people
should start to consider learning more about the Constitution
and what it really means to our freedom.
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