back to article eBay frets as right to resell comes under scrutiny

eBay has launched a “grass roots” campaign to defend America’s first sale doctrine, as a Supreme Court hearing approaches that could subject second-hand and resale trades to the approval of rights-holders. The online auctioneer is lobbying in defense of the first sale doctrine, and has launched “eBay Main Street” to mobilize its …

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Anonymous Coward

I am all for protecting copyrighted works but when they want you to get their permission for selling second hand copies they are just pushing more people into pirating stuff.

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Meh

It is an anomalous judgement, unless of course the Judge has something up his sleeve?

Maybe he thinks resellers should pay a taxation fee to sell second hand goods.

Not only will this have an effect on EBay, but Amazon will be stuffed too.

It would be impossible to differentiate between someone selling on a second hand item and someone reselling the item from a profit point of view.

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Anonymous Coward

By inference

When you buy your house you cannot sell it on if you want to move, it cannot therefore be repossessed either!

Silly idea, silly Judge, silly judgement.

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Re: By inference

Unfortunately, the US government has been chipping away at property rights for nearly a century, and we've gotten to this point. Pathetic.

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Anonymous Coward

Why did Karl Marx drink coffee?

Because proper tea is theft.

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Boffin

Re: By inference

"Land of the Free" is becoming more a more a pathetic joke within this nation's borders.

While I live in America, I've had the opportunity to travel quite a bit. I always chuckle to myself when I hear Americans brag and pump their chests that America is the freest nation, yet in truth, it is really one of the most restrictive. Rather than respect others choices....many wish to control the way other americans live and believe. They even try to dictate to those outside it borders...and yet it has millions who are poor and hungry within its borders. America has become a country without character and resolve. It relies more it its payouts to countries to buy friends/alliances. It's overwhelming transparent and cheapens the character of this once great nation. The UN is overrun by corruption and special interests...yet the US chooses to continue to play along as if there is nothing going on. Turning a blind eye to these kinds of issues will bring this country down even further in standing and respect. Sure other leaders smile and shake the hands of US Leaders, but don't fool yourselves into thinking it changes once they exit the room.

My key point is American needs to focus on cleaning its own house before thinking it knows what's best for other nations. Give them some credit, as America is one of the youngest nations and is heading towards another period of civil unrest due to "Redistribution" beliefs of its current leader.

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Joke

Re: Why did Karl Marx drink coffee?

Ahem.. Proudhon </pedant>

Marx actually argued that Proudhon was wrong, and that "property is theft" is self-refuting. I really should get out more. So to rephrase the joke..

Why did Proudhon drink coffee?

..because he was French

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Anonymous Coward

Quite obviously you bought a license to read the book and don't own it... Didn't you know that? Serves you right for not reading the small print.

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Devil

Devil's advocate mode

This precedent goes both ways. If it is not overthrown it will be only a matter of time until it is enforced in the other direction - for export.

All of those foreign students which study in the USA will be automatically criminals if they decide to take their old textbooks back home overseas and sell/lend/give them as a present to someone. The same applies to a lot of the peace corps and other charity programmes who trawl college and school bookshops and libraries for out-of-use textbooks for use in their 3rd world education drives.

If you look at the bigger picture this is beyond counterproductive. Textbooks are recurring purchases with regular reprints and regular printing of new editions. For each copy which is "illegaly" resold you get tens if not hundreds of copies which are bought via the regular channels.

It is in the publisher interest to get the biggest possible audience for a textbook to ensure that the the reprints and future editions are ordered by as many schools and students as possible. Artificially limiting textbooks by territory means losing mindshare and giving it away to other publishers.

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The small print is meaningless

I've no idea about the law on this in the US, but over in the UK many books have small print saying you can't resell them, but you can still find them in second hand book stores. The law is quite clear. The publisher has the right of first sale after that its yours to do with as you wish, read, burn or sell on. The only thing you can't do is to copy it, that is what copyright is all about. Copyright doesn't give thieving bastards the right to control what you choose to do after you've handed over the money.

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FAIL

Re: The small print is meaningless

"but over in the UK many books have small print saying you can't resell them"

Yes, they do. But the clause continues with "...in any other cover than the original." or words to that effect.

In other words, you can't re-bind the book into a different cover, eg possibly passing it off as your own work, and then sell it. You can re-sell it in the original binding/cover.

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Re: The small print is meaningless

The condition to not sell or lend a rebound book is normally seen in paperback edition. The condition on resale might stem from a desire to stop people buying (cheap) paperbacks, having them bound in hard covers and passing them off as (expensive) hardbacks. Such "passing-off" is probably covered by legislation on counterfit goods.

The condition on lending is perhaps intended to encourage libraries to buy the more expensive and more durable hardback version (which is often one of the larger markerts when it comes to more expensive hardback books). Under UK copyright law, lending, and renting is not permitted without the consent of the rights holds. But libraries are exempt from these restrictions...

Some, generally older, UK editions include a condition that they are not for (re)sale in the US. This might actually be because the US did not de facto recognise non-US copyright under the terms of the Berne Convention until surprisingly recently (1988). Some US citizens have tried (and failed) to argue that US law cannot uphold copyright terms for non-US works produced prior to1988: US citizens now have to pay to put on English plays that they might previously have performed without seeking the rights. (There is still an odditity in that if, and only if, you are a US citizen, you have no right to defend your non-US copyrights in the US unless you formally register them in the US. Nobody else has to register their copyright -- its as if the US legal system recognises the Berne convention for everybody except US citizens...)

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Re: The small print is meaningless

AFAIK it stems from the trick whereby shops would rip off the cover, ship them to the publisher and reclaim money as the books were "unsold", but sell the non coverless paperbacks on, possibly at discount.

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Stop

Re: The small print is meaningless

Yep, this is called "stripping" a book. When a bookseller wants a refund for an unsold book, they rip off and return the cover, and are SUPPOSED to destroy the rest of the book. Reselling a stripped book is a big no-no, for obvious reasons.

The current case seems to mostly be about the gray market (or grey market, if you prefer). Sellers want to control the right to set prices differently in each market, and trying to fix that puts everything in direct conflict with the first sale doctrine, so they need to CUT THAT OUT right this instant.

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Anonymous Coward

"The more you tighten your grip, Tarkin, the more star systems will slip through your fingers."

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Megaphone

Let us see the manufacturers of ALL productes be honest and not hide anything in the small print, let them obviously place the following "Not for resale by anyone under any circumstances" in a highly visible place on all of their products and see their sales drop through the floor.

If I buy something, I am at liberty to sell it once it no longer has a use for me, it is possibly the mother of all recycling and also helps people in a low financial position.

I guess, once more, this has more to do with "Apple" than meets the eye, they are running scared now that android systems are taking over the world.

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What's in the box

I can see trouble when selling a device that may not in itself even have a copyright, but every chip inside carries separate, and multiple, copyrights. Sell one box and you could be charged with multiple infractions.

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Even if there were such warnings, sales may not drop but it would be ignored just like those warnings at the beginning of DVD's. I hope the judges make the only sensible decision and sides with EBAY.

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Anonymous Coward

Oh yes, blame everything on Apple, what are you on about?

Since when has Apple stopped people selling things on ebay?

They may have said they won't transfer iTunes libraries between people, but don't forget they have to play by the rules of the media giants who supply them with the content. It was these media giants who also insisted on DRM for music despite Jobs not wanting it. Jobs also refused to support blu-ray on OSX for similar reasons.

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Speaking of Android...

I am not sure what Android has to do with this, but whilest on that topic, I wish I could resell unwanted purchased Apps that I had bought on Google Play and no longer want. The DRM crap should not get inthe way to prevent me from doing this.

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Its not just the resale of apps. What about music?

Any music, bought from any online store (not just iTunes, but all of them) cannot be resold. Look at the whole Bruce Wills vs Apple stories that have been doing the rounds.

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Facepalm

Itunes hasn't had DRM on music for YEARS.

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FAIL

Woah.. America is really slipping into the crapper isn't it... restricting second hand sales? really? bloody hell...

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Mushroom

Don't worry

America is now officially at the "Nero fiddling as Rome burns" stage, and their empire is falling to the "Goths" (aka China and India). Won't be long now, once America's Rome has been sacked the rest of the world will be free of their greedy shit once again.

I'm looking forward to seeing the USA become the next Somalia. Their comeuppance has been far too long in the offing.

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Anonymous Coward

Re: Don't worry

I could bet money on America not falling. But that's because they won't go without taking everyone else with them. :(

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Re: Don't worry

Their uppance will come!

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Unhappy

Re: Don't worry

"Their comeuppance has been far too long in the offing."

Be careful what you wish for, it might come true and then you might be bowing down to new set of overlords.

The US is not my cup of tea and I do take their arrogance and assumption that everything revolves around them badly, for example, trying to enforce their court decisions on sovereign countries, see Microsoft and Motorola in the spat over the German injunction, blocked by an American court!

But a place like China might just be a bit worse. Look at how they treat Tibet for example.

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Anonymous Coward

Re: Don't worry

If you think everything would be fine without the USA, i would suggest you're forgetful. Every country's government is out of control to varying degrees. until the citizens of each country re-codify individual rights and freedoms and arrest and punish their treasonous leaders, you will always have one country or another on top abusing it's people's mandate and interfering with/disrupting/bombing/starving/infesting with mutant dna/whatever dr.evilian scheme you wish to site, the rest of the world. It's kind of funny that any westerner would condemn the US tactics as they are directly inherited from our common predecessors' tactics. In many ways the US never stopped being a british colony. What do you think the US prison system is? or the critical infrastructure built in occupied/liberated nations? Conquest, war, trade and slavery. New brand name and ad campaign, same product, same parent company. Until we stop buying the product a new seller will always emerge to prey on it's fellow man.

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Devil

All your base...

... are belong to us!

And cannot be sold, licenced, transferred or otherwise disposed of without our express permission...

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Pirate

I actually think that Apple is not really the one lobbying for this, it isn't really in their interests to prevent people moving up the ecosystem. That said, the whole thing with Bruce Willis is relevant but I always got the impression that was more about them covering themselves rather than anything else.

I personally suspect it's more likely to be the RIAA, MPAA and the folks who make high value games - these are the groups who think they lose out most from such things, as demonstrated by the increasingly inane tactics and claims regarding second hand sales of games.

What these people fail to understand is that thinking short-term about profit maximisation is guaranteed to come back and bite you in the ass in the long term.

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more likely to be the RIAA, MPAA and the folks who make high value games

Don't forget textbook publishers.

They change the edition every couple years to make it hard for students to resell their books. 99% of the changes between v4 and v5 is moving the chapters around so the pages don't line up when the prof says turn to page 89.

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Anonymous Coward

@Peter Spicer

that said, the whole thing with Bruce Willis is relevant ...

You mean it's all been made up?

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Ilm not sure why people turned this into an apple vs android thing. Just to note, it turned out the Bruce willis / itunes thing turned out to be completely false.

Not that it really matters given itunes music is drm free now and has been for sometime.

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Black Helicopters

Brucie

Personally, I think the MPAA had a word in Bruce's delicate-shell-like pointing out who pays his bills/salary and that taking such a stance on the issue is counter-productive to them continuing to do so.

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Devil

At this rate..

Humming a tune is going to be considered piracy

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Happy

Re: At this rate..

Didn't Metallica have an ex-member execut....er, detained for doing just that :)

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Anonymous Coward

Re: At this rate..

That would be an unauthorised public performance, if it's in public and people hear it. Probably a different bunch of suits.

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Joke

Re: At this rate..

Wonder when the suits will get around to suing other suits for their suite 'wearing' shenanigans.

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Headmaster

@Pete Spicer

"the folks who make high value games" Surely you mean "high priced" games. I do wish people, especially advertisers/supermarkets/etc would stop ths confusion between value and price/cost.

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Anonymous Coward

It's a tough one...

The upside is that anything that causes eBay sleepless nights has got to be a good thing; if there's one company that needs a major slap, it's eBay.

The downside is an astonishing removal of rights and liberties in the name of short term profit.

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Re: It's a tough one...

I've filed that comment under "Cutting off your nose to spite your face."

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Meh

There is a difference...

There is a difference... between software and abstracts, embedded or otherwise, and hardware/material goods.

With software and other abstracts you purchase a license to use the product, not the product itself. It is completely reasonable for a publisher to have the ability to limit rights in the case of a license... A phone company shouldn't have to allow service transfers, a software company shouldn't have to allow the license to be sold to a second party, etc. Regardless of whether we agree with those terms, a business should be allowed to license their products in whatever manner they choose, the free market is the only body capable of properly regulating this through supply and demand. The same concept applies to material goods in terms of market self regulation.

The market will respond to any attempts to allow outrageous licensing by creating a demand for GPL/BSD/etc style licenses and sales agreements, a supplier will step in, and the demand will be filled. I don't see this being much of a problem since the rights holders are publishers, record labels, and manufacturers rather than individual designers and performers usually.

@Michael Dunn: I would argue that the games *are* high value if for no other reason than people are willing to pay those high prices. It's like gold or diamonds.... they are only valuable because people are willing to pay high prices, supply and demand. Unlike silver, Uranium, or other more industrial rare metals, they have no inherent value other than being considered rare/pretty/valuable. (I'm not going to consider gold as a valuable industrial material due to the extremely small amounts required for its industrial applications; powders and plating in most cases.)

My only real concern within all of this is that every time the US supreme court allows for greater regulation of *anything* it creates more problems than it solves. Just look at the unintended/side effects of every major regulation in the US for the past 100 years. Our war on poverty has increased poverty, economic regulations and taxes have punished the lower and middle classes, drug regulations have made drugs far cheaper and more potent (adjusting for inflation), overzealous environmental regulations have targeted non-existant problems causing grief for the lower and middle classes, healthcare regulations have stifled innovation and research while increasing the cost of care, etc.

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Re: There is a difference...

An argument straight out of Economics 101. The problem is, the 'free' market only works when people (including the players within) let it.

Take this case for example, the publishers are within that market, but rather than letting the market decide what's right and wrong, they're taking legal action to try and enforce a stance that very few would agree is sensible or logical.

With software and other abstracts you purchase a license to use the product, not the product itself. It is completely reasonable for a publisher to have the ability to limit rights in the case of a license...

The problem with software licenses, is in many case it feels like you're buying the item in much the same way as you would a book. What's the difference between walking into WH Smith, paying for and walking out with a book when compared to walking into PC World, paying for MS Office and walking out box in hand?

The only material difference is the terms we apply. In neither case do you expect to sell it as your own creation (at least, not legally) but I think it's quite reasonable to expect to be able to sell either on once you no longer have a need for it.

Whether someone might sell it having made a copy isn't entirely relevant, as they could do the same with the book, it's just a lot more work.

My view is if you've bought a physical item, you are within your rights to sell it on, whether it be a book or an install CD.

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Thumb Down

Re: There is a difference...

Free markets aren't.

Self regulation doesn't.

Welcome to the real world.

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Re: There is a difference...

Why should sw be any different to anything else you hand over your money for in a shop.

SW companies have managed to get away with this fallacy for far too long, SW should not be any different to buying a book, a CD/DVD or any other such stuff. You should hand over your money in return for owning your copy.

Perhaps I should be allowed to say that the money they receive from me may not be sold, trade or exchanged with anyone else.

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Alert

Re: Free markets aren't

The real world isn't, too.

</red pill>

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Vic
Silver badge

Re: There is a difference...

> a software company shouldn't have to allow the license to be sold to a second party

Why not?

Vic.

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WTF?

Re: There is a difference...

If you can't resell something, then it has zero value as an asset, so would people really pay a lot of money for something which was immediately rendered worthless after purchase ?

Wouldn't they be mad really to purchase an item with such restrictions ?

Imagine buying a car, which you couldn't resell because of the licensing conditions of the sofware in the on-board computer! Or that top of the range flat screen television you bought on impulse.

It sounds like some of these companies just want to have their cake and to eat it as well.

Pure greed,

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Facepalm

Interesting article aside, why does a story about the US on a UK site refer to "...what Australians would recognize as parallel imports"?

I'm as Australian as the next guy, but that line seemed a bit out of context.

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Didn't you notice?

Australia was assimilated into the Regborg back in September. The Sharwood/Chirgwin/Apostolu node will help you to become part of the expanded cultural entity.

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