Potential Supreme Courty Copyright Ruling Could Cause a Big Mess

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Postby Richard Kaufman » 10/27/12 11:32 AM

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Postby Brad Henderson » 10/27/12 12:36 PM

If this is too political (that's not my intent, but it does echo certain concepts in the political Arena) - delete it - but the private sectors position on this seems to be 'people in financially well off countries should pay more for the same thing because they are well off' - hence the difference in cost between two otherwise identical items. (even if the book's production costs are slightly higher if printed in the us, the mark up is far greater than that).

Interestingly in today's election cycle, many in the private sector do not apply that same logic to their tax rates (ie those with more success should be ok with paying more for that which they receive).

Does this hypocrisy reveal anything about the case and the opposing positions views? Or should We just be worried about the next time we buy tenyo stuff in japan fat cheaper than one can get them through american dealers?
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Postby Jonathan Townsend » 10/27/12 02:06 PM

If there's significant value in the item being shipped overseas - what prevents the use of import tariff/duties from managing the cost differential?
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Postby erdnasephile » 10/27/12 02:23 PM

As an FYI: Here's another related thread on Genii Forum:

http://www.geniimagazine.com/forums/ubb ... Post274977
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Postby erdnasephile » 10/27/12 02:37 PM

Brad Henderson wrote:If this is too political (that's not my intent, but it does echo certain concepts in the political Arena) - delete it - but the private sectors position on this seems to be 'people in financially well off countries should pay more for the same thing because they are well off' - hence the difference in cost between two otherwise identical items. (even if the book's production costs are slightly higher if printed in the us, the mark up is far greater than that).

Interestingly in today's election cycle, many in the private sector do not apply that same logic to their tax rates (ie those with more success should be ok with paying more for that which they receive).

Does this hypocrisy reveal anything about the case and the opposing positions views? Or should We just be worried about the next time we buy tenyo stuff in japan fat cheaper than one can get them through american dealers?


Brad has an interesting point, but legal protestations to the contrary, I suspect the pricing by the textbook producers actually has nothing to do with some sort of social justice dogma.

Rather, I'll bet they are simply charging what the market will bear in each region. Their primary goal as companies is to make as much money as possible--not to ensure economic "fairness" for all (whatever that means).

The book companies are not the only ones. For example, the regional coding system in blu-rays and DVD's is a ploy to try to keep grey market items from being useful to the majority of folks in the US.

On a local scale, practically every small business/restaurant/service provider adjusts their prices to the prevailing local prices. Applebee's charged me 30% more in Times Square for a lousy burger because Dave's Famous BBQ was doing the same, not because they figured I might be able to afford it. (Don't get me started about the spaghetti and meatball (Yes, singular) at Epcot! :grin:)

Actually, I think the true hypocrisy for many of us is that one of the few times we are willing to pay above market value for a good/service is when it comes to supporting an industry we care about (i.e. brick and mortar magic shops). The rest of the time, we treat everything else like a commodity to be had at the cheapest price regardless.

(Moderator: as Brad has said: please feel free to delete my post if it is too political).
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Postby Richard Kaufman » 10/27/12 03:40 PM

No, nothing political yet.

The essential nature of the argument before the court is whether the first buyer has a right to do with an item what he or she wishes after paying for it, versus how corporations control individual rights. That should discussion should be above politics.
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Postby Dustin Stinett » 10/27/12 10:22 PM

I think part of this issue is that the man on whom this case is focused did more than just buy one book ("personal property") and sell it. He acted like an importing business, without jumping through any of the hoops (legal and financial) importers must normally jump, and sold many books. Frankly, I don't think that the First Sale Doctrine was meant to protect folks who do that sort of thing.
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Postby Jonathan Townsend » 10/27/12 10:51 PM

? Dustin... You mean buying up a bunch of books as a collector (and speculator) and selling them later are much higher prices is at risk due to this case?
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Postby Steve Bryant » 10/27/12 11:04 PM

Didn't Busby try to invoke this idea?
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Postby Dustin Stinett » 10/28/12 12:11 AM

Importing goods from another country duty/tariff free and immediately selling them in a marketplace where the same products are still in print and available--which appears to be the case here--is a big step past speculation of products no longer for sale in a marketplace. What he allegedly did couldn't even be considered "grey market" since--again--it doesn't appear that he imported the books through channels that would make it legal for him to sell the books.

And what Busby attempted to do was prevent someone from selling anything, regardless of numbers, that he produced. It's not the same thing.
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Postby Kevin Connolly » 10/28/12 01:44 AM

The guy MAY have been buying the books used from overseas, which could turn the case in another direction.

Another way to do is to have the books printed in China. Someone will tell them it's not right to do and they'll say so what. ;)
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Postby Dustin Stinett » 10/28/12 02:04 AM

Kevin Connolly wrote:The guy MAY have been buying the books used from overseas, which could turn the case in another direction.

He was buying them new.
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Postby CraigMitchell » 10/28/12 08:34 AM

Dustin = it most certainly is a case of grey market or parallel importation.

A parallel import is an authentic, genuine product imported from another country without the permission of the original intellectual / copyright property owner.

Assuming the importer was bringing the books into the USA legitimately in terms of any sales tax etc that was owing to US Customs on importation of the books - there should be zero issues with his actions ( as I understand it, the USA actually has very limited duty on imports compared to many countries over above normal sales tax that is payable )

He was fostering competition - and making use of simple arbitrage - in bringing to market the exact same product at a lower price to consumers.

Parallel importation is a massive business - particularly in electronics, cosmetics, pharmaceuticals etc.

Bottom line - he was disrupting the manufacturer's appointed US distribution network, exposing their obscene mark-ups and costing them lost sales. The manufacturer was clearly wanting to charge the most that the local market would bear ... and US customers were being sorely taken advantage of.
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Postby Richard Kaufman » 10/28/12 12:49 PM

I remember the prices of textbooks in college and, yes, I was sorely being taken advantage of! Unlike the rest of the students, I was already publishing my own books and knew pretty much what it cost to publish a book.
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Postby Dustin Stinett » 10/28/12 05:39 PM

Craig: The Grey Market is legal. In my business we have a different term for it ("diverting," and it doesnt even have to be with imported products--just one chain selling to another) and it drives us crazy, but it's legal. What he allegedly did--according to one court--was not, because he didn't even follow those rules. The small step of becoming a "legitimate" importer--which he apparently didn't do--may be a nasty little detail, but it's a big step between legal and illegal. Of course, all this is why it's going before the Supreme Court.

As a parent of a college student--and the husband of a wife who went back to school not long ago--I'm happy to talk about the insane prices of text books. What really drives me nuts is that these authors and publishers (some of whom happily--very vocally--decry "consumerism") release "new editions" of their text books that are the required texts for their classes, making the last edition invalid (effectively killing the used book market that I used when I was in school). And some do it more than once a year! My son took a speech class that my wife took when she was at the same school just a couple years previous. Though just a couple of years apart, the book he was required to get was many editions removed from the one my wife paid $80 for--his was $90! (Oh, and the instructor of the class is, "coincidently," the author of the book.) Its quite the racket these days, and people--including the educators--wonder why the cost of higher education has skyrocketed. Its time that these educators turn their focus inward to find the answers.
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Postby Brad Henderson » 10/28/12 05:45 PM

So, the textbook industry would suggest that the informational content in the book has value greater than and apart from the mechanical costs associated with the production.

What does this say about pricing magic books, and ebooks?
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Postby Dustin Stinett » 10/28/12 06:14 PM

Brad, how long are you going to beat that poor old horse?

And the college textbook industry is a tad different from magic books. No one is making anyone buy magic books. But if you are enrolled in a school where specific classes are required to get your degree, the student is required to buy a specific edition of a specific book. (Yes, Brad, I know no one is making anyone go to school, so please dont go there.)
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Postby Brad Henderson » 10/28/12 07:00 PM

When one buys a text book, what are they buying? What is the company selling? Is it just the paper and the glue? Is there value to information? Does it matter if one is required to buy that information or not? In magic, we have no licensing or formal training - what if we did? Would that change things?

Do we as a community feel the same way about our texts as do the text book industry? Do we feel the way we do because we are protecting our self interest? Will our positions be consistent or merely convenient?

Ever since I visited my first magic shop I have been taught that what I was buying was the secret - not necessarily the item itself. That is the reason the 2 cent piece of wax and the penny's worth of thread cost $25 - and no refunds!

Interestingly, today, we see arguments that suggest otherwise.

One need only look to the pricing of magic today - especially the cost differential of material once heralded as "never before available" or "buy now, only a few copies left" - or the books of Lessing and others to see that these ideas are hardly "old horse".

rather, we find ourselves (at least in the real world) reconsidering notions of value as it applies to content, information, and it's accessibility.

[Now, I realize many magicians prefer to isolate themselves from the real world. It is blissful, I suppose, to live one's life believing that these cane shaped objects with those lovely spiral patterns are relevant, but I digress.]

I am sure some people don't care about the issues surrounding the value of information. And I don't expect those people would engage in a discussion thereof. But, as evidence by the many emails I have received during previous threads, many do. In fact, several have explored the dynamics of the text book market as counter examples of the market for magic information.

But why bother, really.

I have come to conclude - it just doesn't matter.

My mistake.

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Postby Bill Mullins » 10/28/12 11:59 PM

A pretty good explanation of the case at hand.
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Postby CraigMitchell » 10/29/12 03:32 AM

Thanks Dustin - in the US, do you know what the requirements are in terms of becoming a "legitimate" importer ? Is there a statutory body that you have to register with or is it simply a case of correctly declaring products imported into the country and paying whatever the requisite tax is ?

The EU's standpoint on parallel importation is bizarre - operating on a different set of rules for imports between countries within the EU and another for imports between the EU and foreign countries. Sony won a groundbreaking case in the EU - and was able to use copyright infringement legislation ( that many would argue was never intended to restrict the sale of authentic goods ) to prevent the parallel importation of PSP game units into the EU from Asia.

http://www.asialaw.com/Article/1971188/ ... rds=online

http://www.ladas.com/IPProperty/GrayMar ... yMa02.html

The lawyers must love this.
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Postby Jonathan Townsend » 10/29/12 08:18 AM

Brad,

Some people do respect IP and the work of artists.
The concerns of the mass-market and its target consumers have nothing to do with those ideas beyond some brand image appeal.
What benefit to conflate the small niche market of tools for performers with the mass market of product aimed at people looking for a new trick?

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Postby Bill Mullins » 10/29/12 12:14 PM

Jonathan Townsend wrote:What benefit to conflate the small niche market of tools for performers with the mass market of product aimed at people looking for a new trick?


I don't really know what Jon is asking here. I tried to diagram the sentence, but broke a pencil.
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Postby Mike Remington » 10/29/12 12:31 PM

Craig - Thanks for the cites to articles. It was not something I expected to see in a magic thread.

CraigMitchell wrote:The EU's standpoint on parallel importation is bizarre


In the 1980's, when practicing law in Brussels, I had expertise in this bizarre area. I even wrote an article published in a couple of legal journals which summarized and criticized the law in the EU as of 1988 and compared the EU position to a then recent US Supreme Court case on parallel imports and trademarks. These articles brought back memories.
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Postby Jonathan Townsend » 10/29/12 01:07 PM

Bill Mullins wrote:
Jonathan Townsend wrote:What benefit to conflate the small niche market of tools for performers with the mass market of product aimed at people looking for a new trick?


I don't really know what Jon is asking here. I tried to diagram the sentence, but broke a pencil.


few performers <> lots of folks who buy tricks

Courtesy of PlainText(sm) :D
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Postby Bill Mullins » 10/29/12 01:11 PM

Despite the lack of a verb, I get that you are drawing a distinction. But to what end, and how is copyright law relevant?

Are you saying that this case should be interpreted to the benefit of one vs. the other? If so, which?
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Postby Jonathan Townsend » 10/29/12 01:18 PM

@Brad about IP and our market

@Copyright case... I feel is awkward and may bring resentment.

IMHO customs-import/duties rather than copyright matter.
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Postby CraigMitchell » 10/29/12 04:23 PM

@Mike Remington - for anyone with a passing interest in law, its a fascinating area. The intricacies of the EU doctrine and the perverse twisting of copyright law to serve a purpose which many believe it was never intended, is intriguing :-)

Although readers of the forum are probably far more interested in the latest coin vanish :-)
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Postby Jonathan Townsend » 10/29/12 04:53 PM

Guess you could call it a coin pass for lots of silver ;)
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Postby John LeBlanc » 10/30/12 01:23 PM

Posted after oral arguments yesterday: http://arstechnica.com/tech-policy/2012 ... ign-goods/
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Postby erdnasephile » 10/30/12 02:05 PM

Thanks, John:

Most troubling part of that article to me:

"Notably, Olson [Wiley's Attorney] didn't back away from the more extreme consequences of his client's win at the 2nd Circuit. If Wiley wins, he said, institutions like museums and libraries might need to get licenses from copyright owners for their activities.

'If you're going to use the product... in a way that's contemplated by the copyright laws, maybe it's required that you actually comply with the copyright laws by going to the owner of the copyright and saying, look, here's what I propose to do, can I have a license to do this? It's a nonprofit, it's a museum.'"
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Postby erdnasephile » 03/19/13 04:03 PM

Just to close the loop:

Here's the Supreme Court ruling from today

http://www.latimes.com/news/nation/nati ... 4337.story
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Postby Richard Kaufman » 03/19/13 05:46 PM

It was the only sane ruling they could make.
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Postby Jonathan Townsend » 03/19/13 06:48 PM

Check out the dissenting opinion. Same PDF
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Postby erdnasephile » 03/19/13 09:56 PM

It appears that two other judges: Alito and Kagan were suggesting a legislative remedy.

http://arstechnica.com/tech-policy/2013 ... urt-rules/

The article makes the point that with Ginsburg, Scalia, and Kennedy that makes 5 justices who are sympathetic to "price discrimination strategies".
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