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Maybe, in the US at least:

http://www.marketwatch.com/story/your-right-to-resell-your-own-stuff-is-in-peril-2012-10-04

While the case might seem a far way off from our little hobby - the implications are not so much. eBay is concerned about the implications that a supporting opinion by the Supremes might bring about and has filed an amicus brief in support of the defendant's position.

The short of the story though is a bit like this:

When goods are manufactured or sold outside the US, the doctrine of first sale is not in play. This doctrine allows a copyright holder to control only the first sale of an object. After that, any additional sales activity of things like used books or DVDs is outside their limits of control under the copyright laws. However, the current ruling by the appellate court has determined that the doctrine of first sale does not apply to goods which are manufactured overseas. The resulting impact on second hand markets like eBay could be staggering as takedown orders could be broad sweeping and you would need to prove the country of origin of a product in order to legally sell it again...or get approval from the manufacturer.

Eh, sounds more focused at independent importers who are buying something in one market to sell in another market to "make a profit"/"exploit the market" depending on your view.

Basically, it is saying that Copyright holders would have right of first sale per market... So the company who makes those books has the right to sell them in the US (which it does) and that buying them elsewhere and importing them to the US for deep discounts violates that. Only if the product is bought and sold domestically can you re-sell it is what they are saying the 'right of first sale' protects.

This gets into the whole thing of global markets and 'cheaters' which has been said multiple times in the US election. We are also currently seeing it in wargaming with the AUS prices for GW... Basically if the US was the horribly overpriced market, and someone was buying figures in AUS for for a 1/10th the price then shipping to the US, then GW would have a case under this example as they want to reserve the right of first sale to the US market with their product.

Not saying it is right or wrong, just trying to decipher what the positions in this article are.

Not sure if it is going to prevent us from selling our trash on eBay... but I cans ee importing/exporting getting a lot tighter due to it as that is what it looks like it is focused on.

 Sean_OBrien wrote:
Maybe, in the US at least:

http://www.marketwatch.com/story/your-right-to-resell-your-own-stuff-is-in-peril-2012-10-04

While the case might seem a far way off from our little hobby - the implications are not so much. eBay is concerned about the implications that a supporting opinion by the Supremes might bring about and has filed an amicus brief in support of the defendant's position.

The short of the story though is a bit like this:

When goods are manufactured or sold outside the US, the doctrine of first sale is not in play. This doctrine allows a copyright holder to control only the first sale of an object. After that, any additional sales activity of things like used books or DVDs is outside their limits of control under the copyright laws. However, the current ruling by the appellate court has determined that the doctrine of first sale does not apply to goods which are manufactured overseas. The resulting impact on second hand markets like eBay could be staggering as takedown orders could be broad sweeping and you would need to prove the country of origin of a product in order to legally sell it again...or get approval from the manufacturer.

This could happen actually but it depends on which company decides to enforce their right.
If GW does this then they can kiss their company good bye because it will drive a lot more of their customer base away from playing the game.

But we all know how incredibly stupid some of the decisions that corporation makes. hmmmm?

 Adam LongWalker wrote:

 Sean_OBrien wrote:
Maybe, in the US at least:

http://www.marketwatch.com/story/your-right-to-resell-your-own-stuff-is-in-peril-2012-10-04

While the case might seem a far way off from our little hobby - the implications are not so much. eBay is concerned about the implications that a supporting opinion by the Supremes might bring about and has filed an amicus brief in support of the defendant's position.

The short of the story though is a bit like this:

When goods are manufactured or sold outside the US, the doctrine of first sale is not in play. This doctrine allows a copyright holder to control only the first sale of an object. After that, any additional sales activity of things like used books or DVDs is outside their limits of control under the copyright laws. However, the current ruling by the appellate court has determined that the doctrine of first sale does not apply to goods which are manufactured overseas. The resulting impact on second hand markets like eBay could be staggering as takedown orders could be broad sweeping and you would need to prove the country of origin of a product in order to legally sell it again...or get approval from the manufacturer.

This could happen actually but it depends on which company decides to enforce their right.
If GW does this then they can kiss their company good bye because it will drive a lot more of their customer base away from playing the game.

But we all know how incredibly stupid some of the decisions that corporation makes. hmmmm?

For the record, I don't consider it to be a "right" of any company. Corporations don't get to have it both ways; big business are the ones who've been driving the move towards globalisation over the last couple of decades, well that's fine and dandy, but they can't then turn around and try to act as if they're still doing business under the old nation-state-limited model, replete with protectionism.

Either a person owns something when they buy it, or they don't; if the company or their distributors make a product available for sale in different countries at a massive price disparity, one large enough that a second-hand importer can make money off of it, then that's the company's problem, nobody else's. It really is a shame the way the biased legal system in America is trampling consumer rights in order to do the bidding of big corporations, I'm just glad it's not quite as bad over here in Europe. Yet.

And if you want to know how much of a problem this sort of system would be take a look at the DMCA and how much of a fething party that's been.

nkelsch wrote:
Eh, sounds more focused at independent importers who are buying something in one market to sell in another market to "make a profit"/"exploit the market" depending on your view.

In the strictest interpretation of the case, that might hold true - however that isn't what the case is about anymore.

http://www.scotusblog.com/case-files/cases/kirtsaeng-v-john-wiley-sons-inc/

On the side of those who are supporting the first sale doctrine, you have eBay which I have already mentioned...but you also have groups like Goodwill as they rely on donated goods to fund their operations (which would also be in jeopardy), you have Costco who often purchases through liquidation companies, you have the American Library Association who also relies on donated books and sees the fall of doctrine of first sale to actually potentially lead to a fall of the lending practice which libraries engage in.

On the other side you have the Motion Picture Association of America and the Recording Industry Association of America - groups which have a whole lot to gain should they be able to knock listings of DVDs, CDs and other music and movies off from eBay and out of second hand stores.

Perhaps a better article to link to would be one which delves more into the case as opposed to that one:

http://www.ipbrief.net/2012/06/12/first-sale-doctrine-kirtsaeng-v-john-wiley-sons/

 Sean_OBrien wrote:
Maybe, in the US at least:

http://www.marketwatch.com/story/your-right-to-resell-your-own-stuff-is-in-peril-2012-10-04

While the case might seem a far way off from our little hobby - the implications are not so much. eBay is concerned about the implications that a supporting opinion by the Supremes might bring about and has filed an amicus brief in support of the defendant's position.

The short of the story though is a bit like this:

When goods are manufactured or sold outside the US, the doctrine of first sale is not in play. This doctrine allows a copyright holder to control only the first sale of an object. After that, any additional sales activity of things like used books or DVDs is outside their limits of control under the copyright laws. However, the current ruling by the appellate court has determined that the doctrine of first sale does not apply to goods which are manufactured overseas. The resulting impact on second hand markets like eBay could be staggering as takedown orders could be broad sweeping and you would need to prove the country of origin of a product in order to legally sell it again...or get approval from the manufacturer.

My understanding of the law in the USA is that you are innocent until proven guilty. Thus, I would expect that the burden of proof would be on the manufacturer to prove that the items were not produced in the USA.

This is also rather moot, in that a fair amount of GWs stuff is sold in the US is made in the US.

 spaceelf wrote:

My understanding of the law in the USA is that you are innocent until proven guilty. Thus, I would expect that the burden of proof would be on the manufacturer to prove that the items were not produced in the USA.

This is also rather moot, in that a fair amount of GWs stuff is sold in the US is made in the US.

The criminal law...yes, you would be correct. Civil law has a lower standard of evidence which must be met, and the application of the law in front of a judge may not even be a future option...

As was mentioned already - we have things like the DMCA in effect, which doesn't carry any burden of proof. All a company would need to do is file a complaint with a site like eBay that a listing was in violation of the rights of the company and they would have to take down the listing. You see this happen already. You would also have companies who refuse to list the items to begin with due to the potential risk involved of acting as an accessory without have explicit proof of the country of origin.

In the case of GW - I used to buy a lot of their products from overseas sellers on eBay and elsewhere. Those listings would be unreachable. Forgeworld items will be off the table, as would many old collectors pieces - to say nothing of the books and other items.

That's interesting, I remember my lgs owner was saying something about GW trying to work something out with eBay and amazon to stop third party sells of their product. Something about GW would buy up anything citadel related as soon as it post or something. I didn't really believe it at the time but this thread reminded me of it.

nkelsch wrote:
Eh, sounds more focused at independent importers who are buying something in one market to sell in another market to "make a profit"/"exploit the market" depending on your view.

It doesn't matter what the focus is. It only matters how the SCotUS rules.

Here are a couple of scenarios:

A movie studio releases a few films on DVD in Australia but not in the USA. I buy the region free DVD's from an Aussie on eBay. Later on, the movie studios get off their arses and release region one Blu-Rays which is better for me because I prefer Blu-Ray. If the ruling in this case favors the copyright holder, I would be forced to seek out that person/company and get their permission before I could sell my region free DVDs.

Another very real scenario is that since Forge World figures are produced in England, I would be unable to sell them on eBay without Forge World's expressed, written permission. IIRC the 25th Anniversary Space Marine was also made in England which would mean I would have to ask GW for their permission to sell.

Don't forget that having to request permission obliges you to any conditions they copyright holder may place on that permission. Obligations may include a maximum price you can sell for or being required to pay royalties to the copyright holder once the sale is completed.

This may also have the side effect of reducing the amount of money people would be willing to spend on product produced outside the US. It certainly decreases the value of those goods.

Sounds like utter crap, but then again you can register copyright on indigenous peoples genes without their consent, so anything is possible in US law.

 Sean_OBrien wrote:

 spaceelf wrote:

My understanding of the law in the USA is that you are innocent until proven guilty. Thus, I would expect that the burden of proof would be on the manufacturer to prove that the items were not produced in the USA.

This is also rather moot, in that a fair amount of GWs stuff is sold in the US is made in the US.

The criminal law...yes, you would be correct. Civil law has a lower standard of evidence which must be met, and the application of the law in front of a judge may not even be a future option...

As was mentioned already - we have things like the DMCA in effect, which doesn't carry any burden of proof. All a company would need to do is file a complaint with a site like eBay that a listing was in violation of the rights of the company and they would have to take down the listing. You see this happen already. You would also have companies who refuse to list the items to begin with due to the potential risk involved of acting as an accessory without have explicit proof of the country of origin.

In the case of GW - I used to buy a lot of their products from overseas sellers on eBay and elsewhere. Those listings would be unreachable. Forgeworld items will be off the table, as would many old collectors pieces - to say nothing of the books and other items.

GW would still have to meet some standard of evidence, even if it is not as high as in a criminal case. Further, I cannot imagine that there would not be an option to contest the claim.

Then there is the enforcement aspect. e-Bay has lots of counterfeit products for sale. The sale of such items is illegal, but that does not stop it from happening.

 Kroothawk wrote:
Sounds like utter crap, but then again you can register copyright on indigenous peoples genes without their consent, so anything is possible in US law.

but those pants are copy writted by the company that sold them to me. :F, No for the most part this case is bs, and a pricing problem done by the company. The company can go feth themselves if they can sell so cheap to an another country/location that if that location loads up the product and brings it back into america, they can makes 1.2 million off of it. There is no law that should alter that, the company should correct itself.

 spaceelf wrote:

 Sean_OBrien wrote:

 spaceelf wrote:

My understanding of the law in the USA is that you are innocent until proven guilty. Thus, I would expect that the burden of proof would be on the manufacturer to prove that the items were not produced in the USA.

This is also rather moot, in that a fair amount of GWs stuff is sold in the US is made in the US.

The criminal law...yes, you would be correct. Civil law has a lower standard of evidence which must be met, and the application of the law in front of a judge may not even be a future option...

As was mentioned already - we have things like the DMCA in effect, which doesn't carry any burden of proof. All a company would need to do is file a complaint with a site like eBay that a listing was in violation of the rights of the company and they would have to take down the listing. You see this happen already. You would also have companies who refuse to list the items to begin with due to the potential risk involved of acting as an accessory without have explicit proof of the country of origin.

In the case of GW - I used to buy a lot of their products from overseas sellers on eBay and elsewhere. Those listings would be unreachable. Forgeworld items will be off the table, as would many old collectors pieces - to say nothing of the books and other items.

GW would still have to meet some standard of evidence, even if it is not as high as in a criminal case. Further, I cannot imagine that there would not be an option to contest the claim.

Then there is the enforcement aspect. e-Bay has lots of counterfeit products for sale. The sale of such items is illegal, but that does not stop it from happening.

Again, look at the DMCA. I can file a DMCA claim against any media content anywhere on the web, and the host of that content is legally obligated to immediately take that content down(if they operate under the jurisdiction of US law). I don't even have to prove that I own the copyright on the item of media in question, it is up to the person who uploaded the media to then go to the host and contest my claim, and they must prove that they have the right to upload it. It doesn't matter if I'm the actual copyright holder, or if the content clearly falls under Fair Use provisions, or anything else; simply by making a DMCA claim, I am considered to be in the right until the person I am accusing proves otherwise, it is a complete reversal of the normal burden of proof.

Depending on which way the swing-justice votes(because you can guarantee that the others will rule along party lines; Dems against, Republicans in favour, as they always are of stripping rights from consumers and giving more to corporations), this could end up being very similar, and it wouldn't function in the same way as counterfeiting, because in that instance the aggrieved party must not only prove the goods being sold are counterfeit, but also that the retailer(such as eBay) knew they were counterfeit in order to make the retailer culpable; if the ruling here is broad enough then the retailer could be made just as liable as they are under the DMCA, where failure to immediately remove the allegedly-offending item would make them an accessory.

Make no mistake, the sole intent of the media and publishing industry bodies who are backing the plaintiff in this case is to seek a new legal precedent which they can use to stifle what are presently entirely fair and legal secondhand sales between private individuals, just as their sole intent in backing the DMCA -and more recent and further reaching legal atrocities like ACTA- was to beat back the internet as a potential threat to their control of media publishing.

 Sean_OBrien wrote:


As was mentioned already - we have things like the DMCA in effect, which doesn't carry any burden of proof. All a company would need to do is file a complaint with a site like eBay that a listing was in violation of the rights of the company and they would have to take down the listing. You see this happen already. You would also have companies who refuse to list the items to begin with due to the potential risk involved of acting as an accessory without have explicit proof of the country of origin.

In the case of GW - I used to buy a lot of their products from overseas sellers on eBay and elsewhere. Those listings would be unreachable. Forgeworld items will be off the table, as would many old collectors pieces - to say nothing of the books and other items.

Not that I disagree with you generally Sean, but the website is not obligated to take down allegedly infringing content in the event of a DMCA takedown notification insofar as I understand the DMCA. The website has to take down the content in order to establish safe harbor.

Functionally, of course, there is no appreciable difference. I think that the safe harbor provision, while theoretically intended to benefit content providers, is particularly insidious in that it provides for an incredible incentive to remove allegedly infringing content on nothing more than the word of a self-interested party.

weeble1000 wrote:

Not that I disagree with you generally Sean, but the website is not obligated to take down allegedly infringing content in the event of a DMCA takedown notification insofar as I understand the DMCA. The website has to take down the content in order to establish safe harbor.

Functionally, of course, there is no appreciable difference. I think that the safe harbor provision, while theoretically intended to benefit content providers, is particularly insidious in that it provides for an incredible incentive to removed allegedly infringing content on nothing more than the word of a self-interested party.

You are correct in my understanding as well - however, with the exception of a few of the seedier websites who were flying in the face of copyright laws to begin with...I don't recall ever hearing of a site so far which has in fact stood up against a DMCA takedown notice. IIRC, the ChillingEffects clearing house has even bowed to DMCA notices in the past, though I would have to look that up...to be certain.

Quite often, it is not the specific wording of the law that matters and rather the actual effect that is important.

 Yodhrin wrote:

Again, look at the DMCA. I can file a DMCA claim against any media content anywhere on the web, and the host of that content is legally obligated to immediately take that content down(if they operate under the jurisdiction of US law). I don't even have to prove that I own the copyright on the item of media in question, it is up to the person who uploaded the media to then go to the host and contest my claim, and they must prove that they have the right to upload it. It doesn't matter if I'm the actual copyright holder, or if the content clearly falls under Fair Use provisions, or anything else; simply by making a DMCA claim, I am considered to be in the right until the person I am accusing proves otherwise, it is a complete reversal of the normal burden of proof.

To file a DMCA notice you must swear that a work is infringing. The noticee can then file a counter notice and swear that it is not. (No proof is needed in either case.) After such a counter filing, the plaintiff can choose to take the case to court. The plaintiff would need a court order to keep the infringing item off of the net. I also believe that the plaintiff would have the burden of proof in the case, rather than the defendant.

 Sean_OBrien wrote:

weeble1000 wrote:

Not that I disagree with you generally Sean, but the website is not obligated to take down allegedly infringing content in the event of a DMCA takedown notification insofar as I understand the DMCA. The website has to take down the content in order to establish safe harbor.

Functionally, of course, there is no appreciable difference. I think that the safe harbor provision, while theoretically intended to benefit content providers, is particularly insidious in that it provides for an incredible incentive to removed allegedly infringing content on nothing more than the word of a self-interested party.

You are correct in my understanding as well - however, with the exception of a few of the seedier websites who were flying in the face of copyright laws to begin with...I don't recall ever hearing of a site so far which has in fact stood up against a DMCA takedown notice. IIRC, the ChillingEffects clearing house has even bowed to DMCA notices in the past, though I would have to look that up...to be certain.

Quite often, it is not the specific wording of the law that matters and rather the actual effect that is important.

I work in this industry, and I can assure you that there are plenty of sites that stand up to DMCA notices, stay online, and are totally fine afterwards since they are confident the material is theirs. The only reason anything is immediately taken down in regards to our company is if we get a DMCA and after contacting the client (which we do obviously right after receiving the DMCA) we do not hear from them in 24 hours we take the site down, because after 24 hours if we do not hear back from them we can be held liable.

I doubt very much that this will happen.

It would make goodwill and salvation army stories go out of business since the vast majority of cloths are made somewhere other than america.

Plus all those used car dealerships....

It's all about levels of extreme in this, I very much doubt it will happen...

Can you imagine this for:
1) Cars
2) Apple Product ;-)
3) Any used good stores
4) Minerals and Gems

I could go on. It's a fundamental shift that would change commerce in a global way... just cannot see it happening.

If anything went through, it would be very specific and diluted so as not to cause a systemic issue.

Surely there's got to be a work-around for even the worst case scenario? Just list an Australian (or any other country) eBay account and sell everything through that?

It doesn't matter which accounts the money flows. It only matters if the item being sold on the secondary market is subject to the doctrine of first sale or not.

 spaceelf wrote:

 Yodhrin wrote:

Again, look at the DMCA. I can file a DMCA claim against any media content anywhere on the web, and the host of that content is legally obligated to immediately take that content down(if they operate under the jurisdiction of US law). I don't even have to prove that I own the copyright on the item of media in question, it is up to the person who uploaded the media to then go to the host and contest my claim, and they must prove that they have the right to upload it. It doesn't matter if I'm the actual copyright holder, or if the content clearly falls under Fair Use provisions, or anything else; simply by making a DMCA claim, I am considered to be in the right until the person I am accusing proves otherwise, it is a complete reversal of the normal burden of proof.

To file a DMCA notice you must swear that a work is infringing. The noticee can then file a counter notice and swear that it is not. (No proof is needed in either case.) After such a counter filing, the plaintiff can choose to take the case to court. The plaintiff would need a court order to keep the infringing item off of the net. I also believe that the plaintiff would have the burden of proof in the case, rather than the defendant.

But if the host wishes to ensure they cannot be held legally culpable for the actions of the uploader, they must remove the allegedly offending content the moment the allegation is made, so functionally, as the law is applied in the real world, the burden of proof is reversed. No sane individual person with a normal income is going to contest a DMCA claim filed against them by a massive corporate entity or industry body in a court, they would be bankrupted by the legal fees.

So, lets assume for the sake of argument that a similar system arises in this instance; I list an item on eBay which I purchased, legitimately, in the USA(ignore for a moment that I don't live there, we are discussing a hypothetical me), but which the original manufacturer or their official distributors sell cheaper in other countries. As the item I am selling(lets say it's a mobile phone) is second-hand, I obviously list it at a price that is substantially below market value for the same product when sold new. Lets say that the company who manufactured this product, we'll call them "Grapple", have decided to use this new precedent to stifle the secondhand market for their product, and so they file a claim with eBay alleging that the item I'm selling was bought abroad and imported into the USA so I could undercut the original manufacturer.

What do you think eBay is going to do? They're going to do exactly what YouTube, or GoDaddy, or any other data hosting service does when they get a DMCA claim; take down the listing to protect themselves. And how exactly is hypothetical me supposed to respond to that? Am I supposed to take Grapple, a multi-billion-dollar corporation with a legal budget that would shame the GDP of some small developed nations, to court? Am I supposed to go cap-in-hand to Grapple and beg them to let me sell my secondhand product, a product which I legally own and have every right to sell?

And it's not just private individuals that would get screwed over in such a system; what about recycling companies that offer to pay people for their old stuff? What about classified ads websites? What about classified ads in newspapers? How long after such a precedent is set before people are frustrated or scared to the point that they'll just stop bothering to try and sell their old stuff?

If a person purchases a product legally, they own that product, and it should be theirs to do with as they will. If the manufacturer doesn't like that, they should have three choices; 1. raise the cost of the product abroad so that importing it in is no longer profitable, 2. cut the price of the product in the USA in order to make it more competitive with the importers, 3. deal with it.

 Makaleth wrote:
It's all about levels of extreme in this, I very much doubt it will happen...

Can you imagine this for:
1) Cars
2) Apple Product ;-)
3) Any used good stores
4) Minerals and Gems

I could go on. It's a fundamental shift that would change commerce in a global way... just cannot see it happening.

If anything went through, it would be very specific and diluted so as not to cause a systemic issue.

We are only really talking about first sale overseas where the US first sale rules don't apply they claim. So domestically, iPhones and Cars and such are not changing and still follow the doctrine of first sale. And being US law, it only really applies to items sold in international markets being re-sold to US markets, basically importing.

nkelsch wrote:

We are only really talking about first sale overseas where the US first sale rules don't apply they claim. So domestically, iPhones and Cars and such are not changing and still follow the doctrine of first sale. And being US law, it only really applies to items sold in international markets being re-sold to US markets, basically importing.

Actually no, the strict interpretation of the law which is being applied is based on where an object is manufactured...not sold. That is why it is so troubling for so many of the groups which deal with selling stuff for a second time, like eBay and Goodwill. Almost everything would be subject to the law, provided it carries a copyrightable aspect. So, iStuff...books, DVDs, board games, most toys, many clothes...

 Breotan wrote:
It doesn't matter which accounts the money flows. It only matters if the item being sold on the secondary market is subject to the doctrine of first sale or not.

I think it matters very much. I, an Australian, can list any item I want on eBay (staying within eBays limitations obviously) and an American can buy it if they want regardless of the First Sale doctrine.

 Kaldor wrote:

 Breotan wrote:
It doesn't matter which accounts the money flows. It only matters if the item being sold on the secondary market is subject to the doctrine of first sale or not.

I think it matters very much. I, an Australian, can list any item I want on eBay (staying within eBays limitations obviously) and an American can buy it if they want regardless of the First Sale doctrine.

And the point being made is that if this ruling is allowed to stand or is even expanded upon, an American may well not be able to buy it, because eBay may very well have to end international sales involving their US customers in order to protect themselves. Remember it's not just individuals who reside in the USA who would be affected by this foolishness, it's any company which operates there too.

 Yodhrin wrote:

 Kaldor wrote:

 Breotan wrote:
It doesn't matter which accounts the money flows. It only matters if the item being sold on the secondary market is subject to the doctrine of first sale or not.

I think it matters very much. I, an Australian, can list any item I want on eBay (staying within eBays limitations obviously) and an American can buy it if they want regardless of the First Sale doctrine.

And the point being made is that if this ruling is allowed to stand or is even expanded upon, an American may well not be able to buy it, because eBay may very well have to end international sales involving their US customers in order to protect themselves. Remember it's not just individuals who reside in the USA who would be affected by this foolishness, it's any company which operates there too.

That would most likely be the case. In the same way certain things are blocked on YouTube from being watched here or there because of the specific local copyright laws.

Well, sucks to be an American then. So much for all their 'freedoms'.

 Kaldor wrote:
Well, sucks to be an American then. So much for all their 'freedoms'.

"Freedom is an illusion by those with power to make".

The second the United States outlaws garage sales, I'm leaving. And what is Ebay if not the worlds largest never ending garage sale?