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Why The Supreme Court Needs To Make Sure That Selling A Used iPad Isn't A Copyright Violation
from the first-sale,-please dept

Over the last few years, we've been following a series of cases that have challenged the first sale doctrine -- which says that if you buy a product that has some element covered by copyright (i.e., a book) you're able to resell that item at a later date without seeking permission from the copyright holder(s). There was the very troubling ruling in the 9th Circuit in the Omega/Costco case, in which watchmaker Omega put a tiny little image on the underside of its watches -- for which it claimed copyright -- that were sold relatively cheaply outside of the US. When a bunch of those watches were purchased (legally) outside of the US, and then imported and sold by Costco (for less than what Omega was selling watches for directly in the US), the company sued... claiming copyright infringement on that tiny logo no one looks at.

Now, you might think that under the first sale doctrine, it wouldn't matter. But, the statute is inelegantly worded. It says that first sale applies to products made "under this" law. Omega argued that since the products were made outside the US, they weren't made under the US Copyright Act... and thus, were not subject to the Copyright Act or first sale when they showed up on US soil. The Supreme Court heard the case, but split down the middle, because Justice Kagan had filed an argument as Solicitor General in that case, and thus recused herself. Worryingly, as Solicitor General, she has argued that first sale does not apply to foreign goods.

Last year, we had another ruling, over in the 2nd Circuit, which in many ways was even worse. It involved a guy, Sudap Kirtsaeng, who had relatives in Asia purchase cheaper textbooks there and ship them to the US, where he then resold them at a profit (but still for less than what the publishers were charging in the US). Publisher John Wiley & Sons sued... and got a ridiculously broad ruling, saying that any product manufactured outside the US is not covered by the Copyright Act, and thus not eligible for first sale protection.

In fact, in many ways this ruling was even worse that the Omega ruling -- which at least said that if the manufacturer had authorized the product for sale in the US, then first sale rights would apply to all of those products, this ruling even said that this was not true. The court acknowledged that this was kind of a crazy situation, which could have ridiculous consequences (all manufacturing moves overseas immediately to get away from first sale doctrine), but says that's what the Copyright Act appears to say:

Kirtsaeng argues that this holding is undesirable as a matter of public policy because it may permit a plaintiff to vitiate the first sale doctrine by “manufactur[ing] all of its volumes overseas only to then ship them into the U.S. for domestic sales.” Defendant-Appellant’s Br. at 21. Phrased differently, it is argued that any such decision may allow a copyright holder to completely control the resale of its product in the United States by producing its goods abroad and then immediately importing them for initial distribution. In this sense, the copyright holder would arguably enjoy the proverbial “best of both worlds” because, in theory, the consumer could not rely on the first sale doctrine to re-sell the imported work. In other words, the copyright holder would have an incentive to“outsource” publication to foreign locations to circumvent the availability of the first sale doctrine as a defense for consumers wishing to re-sell their works in the domestic market. The result might be that American manufacturing would contract along with the protections of the first sale doctrine. Kirtsaeng argues that this could not possibly have been Congress’s intent. We acknowledge the force of this concern, but it does not affect or alter our interpretation of the Copyright Act.

In other words, yeah, that's crazy, but too freaking bad.

As we noted in April, the Supreme Court has agreed to hear the case.

Constitutional scholar Marvin Ammori has done an excellent analysis over at the Atlantic about some of the ridiculous consequences of such a ruling being upheld:

Here are some things you might have recently done that will be rendered illegal if the Supreme Court upholds the lower court decision:

Sold your first-generation iPad on Craigslist to a willing buyer, even if you bought the iPad lawfully at the Apple Store.
Sold your dad's used Omega watch on eBay to buy him a fancier (used or new) Rolex at a local jewelry store.
Sold an "import CD" of your favorite band that was only released abroad but legally purchased there. Ditto for a copy of a French or Spanish novel not released in the U.S.
Sold your house to a willing buyer, so long as you sell your house along with the fixtures manufactured in China, a chandelier made in Thailand or Paris, support beams produced in Canada that carry the imprint of a copyrighted logo, or a bricks or a marble countertop made in Italy with any copyrighted features or insignia.

Basically, if you sell anything that was made overseas that has anything covered by copyright on it... you might need to get permission to legally resell it. That's insane, and there's no way that was the intention of Congress in passing the law. The courts are supposed to avoid obviously nonsensical outcomes, but they don't always understand the consequences of their rulings. While the courts have (correctly) noted that Congress can fix and clarify the law later, Congress isn't very good at acting quickly on stuff like this and any time Congress even touches copyright law, it's something to worry about.

Ammori notes that there's actually a third case, over in the Third Circuit, Sebastian v. Consumer Contacts, in which the court "was reluctant to accept" the idea that first sale only applies to goods made in the US. So there's a pretty clear circuit split for the Supreme Court to work out. But, it's a little scary that it might come down in support of either the Omega or the John Wiley rulings -- and we already know that the Omega case had four of the justices in support of that absurd interpretation. Ammori points out that the Supreme Court has an opportunity to fix things and get it right this time around, and hopes that it will:

But the Supreme Court doesn't have to impose an absurd result on the nation. The first-sale doctrine reflects basic common sense -- and follows from the logic of treating copyrights and other "intellectual property" with no more protection than regular property. Ever since the end of Medieval feudalism, and the writings of John Locke, we have understood the importance of being able to buy and sell one's own property, including books and watches, both for reasons of economics and liberty.

The Court has several legal justifications for reaching the right result. Courts are supposed to interpret laws to avoid "absurd results" and to avoid constitutional problems -- such as infringing on the free speech rights of Americans that want to buy and sell their own books and creative works that are published abroad and taking away the property rights, without compensation, of the millions of Americans who buy and sell their own stuff every day, in person and online.

Ultimately the Court must choose between bringing copyright law into the Internet age or consigning us all to the dark ages. I hope they choose wisely.

I hope so too, though I have little faith on this one, considering that the Supreme Court always gets screwed up when it comes to copyright cases...

Shut up and play nice: How the Western world is limiting free speech
By Jonathan Turley, Published: October 12

Free speech is dying in the Western world. While most people still enjoy considerable freedom of expression, this right, once a near-absolute, has become less defined and less dependable for those espousing controversial social, political or religious views. The decline of free speech has come not from any single blow but rather from thousands of paper cuts of well-intentioned exceptions designed to maintain social harmony.

In the face of the violence that frequently results from anti-religious expression, some world leaders seem to be losing their patience with free speech. After a video called “Innocence of Muslims” appeared on YouTube and sparked violent protests in several Muslim nations last month, U.N. Secretary General Ban Ki-moon warned that “when some people use this freedom of expression to provoke or humiliate some others’ values and beliefs, then this cannot be protected.”

It appears that the one thing modern society can no longer tolerate is intolerance. As Australian Prime Minister Julia Gillard put it in her recent speech before the United Nations, “Our tolerance must never extend to tolerating religious hatred.”

A willingness to confine free speech in the name of social pluralism can be seen at various levels of authority and government. In February, for instance, Pennsylvania Judge Mark Martin heard a case in which a Muslim man was charged with attacking an atheist marching in a Halloween parade as a “zombie Muhammed.” Martin castigated not the defendant but the victim, Ernie Perce, lecturing him that “our forefathers intended to use the First Amendment so we can speak with our mind, not to piss off other people and cultures — which is what you did.”

Of course, free speech is often precisely about pissing off other people — challenging social taboos or political values.

This was evident in recent days when courts in Washington and New York ruled that transit authorities could not prevent or delay the posting of a controversial ad that says: “In any war between the civilized man and the savage, support the civilized man. Support Israel. Defeat jihad.”

When U.S. District Judge Rosemary Collyer said the government could not bar the ad simply because it could upset some Metro riders, the ruling prompted calls for new limits on such speech. And in New York, the Metropolitan Transportation Authority responded by unanimously passing a new regulation banning any message that it considers likely to “incite” others or cause some “other immediate breach of the peace.”

Such efforts focus not on the right to speak but on the possible reaction to speech — a fundamental change in the treatment of free speech in the West. The much-misconstrued statement of Justice Oliver Wendell Holmes that free speech does not give you the right to shout fire in a crowded theater is now being used to curtail speech that might provoke a violence-prone minority. Our entire society is being treated as a crowded theater, and talking about whole subjects is now akin to shouting “fire!”

The new restrictions are forcing people to meet the demands of the lowest common denominator of accepted speech, usually using one of four rationales.

Speech is blasphemous

This is the oldest threat to free speech, but it has experienced something of a comeback in the 21st century. After protests erupted throughout the Muslim world in 2005 over Danish cartoons depicting the prophet Muhammad, Western countries publicly professed fealty to free speech, yet quietly cracked down on anti-religious expression. Religious critics in France, Britain, Italy and other countries have found themselves under criminal investigation as threats to public safety. In France, actress and animal rights activist Brigitte Bardot has been fined several times for comments about how Muslims are undermining French culture. And just last month, a Greek atheist was arrested for insulting a famous monk by making his name sound like that of a pasta dish.

Some Western countries have classic blasphemy laws — such as Ireland, which in 2009 criminalized the “publication or utterance of blasphemous matter” deemed “grossly abusive or insulting in relation to matters held sacred by any religion.” The Russian Duma recently proposed a law against “insulting religious beliefs.” Other countries allow the arrest of people who threaten strife by criticizing religions or religious leaders. In Britain, for instance, a 15-year-old girl was arrested two years agofor burning a Koran.

Western governments seem to be sending the message that free speech rights will not protect you — as shown clearly last month by the images of Nakoula Basseley Nakoula, the YouTube filmmaker, being carted away in California on suspicion of probation violations. Dutch politician Geert Wilders went through years of litigation before he was acquitted last year on charges of insulting Islam by voicing anti-Islamic views. In the Netherlandsand Italy, cartoonists and comedians have been charged with insulting religion through caricatures or jokes.

Even the Obama administration supported the passage of a resolution in the U.N. Human Rights Council to create an international standard restricting some anti-religious speech (its full name: “Combating Intolerance, Negative Stereotyping and Stigmatization of, and Discrimination, Incitement to Violence and Violence Against, Persons Based on Religion or Belief”). Egypt’s U.N. ambassador heralded the resolution as exposing the “true nature” of free speech and recognizing that “freedom of expression has been sometimes misused” to insult religion.

At a Washington conference last yearto implement the resolution, Secretary of State Hillary Rodham Clinton declared that it would protect both “the right to practice one’s religion freely and the right to express one’s opinion without fear.” But it isn’t clear how speech can be protected if the yardstick is how people react to speech — particularly in countries where people riot over a single cartoon. Clinton suggested that free speech resulting in “sectarian clashes” or “the destruction or the defacement or the vandalization of religious sites” was not, as she put it, “fair game.”

Given this initiative, President Obama’s U.N. address last month declaring America’s support for free speech, while laudable, seemed confused — even at odds with his administration’s efforts.

Speech is hateful

In the United States, hate speech is presumably protected under the First Amendment. However, hate-crime laws often redefine hateful expression as a criminal act. Thus, in 2003, the Supreme Court addressed the conviction of a Virginia Ku Klux Klan member who burned a cross on private land. The court allowed for criminal penalties so long as the government could show that the act was “intended to intimidate” others. It was a distinction without meaning, since the state can simply cite the intimidating history of that symbol.

Other Western nations routinely bar forms of speech considered hateful. Britain prohibits any “abusive or insulting words” meant “to stir up racial hatred.” Canada outlaws “any writing, sign or visible representation” that “incites hatred against any identifiable group.” These laws ban speech based not only on its content but on the reaction of others. Speakers are often called to answer for their divisive or insulting speech before bodies like the Canadian Human Rights Tribunal.

This month, a Canadian court ruled that Marc Lemire, the webmaster of a far-right political site, could be punished for allowing third parties to leave insulting comments about homosexuals and blacks on the site. Echoing the logic behind blasphemy laws, Federal Court Justice Richard Mosley ruled that “the minimal harm caused . . . to freedom of expression is far outweighed by the benefit it provides to vulnerable groups and to the promotion of equality.”

Speech is discriminatory

Perhaps the most rapidly expanding limitation on speech is found in anti-discrimination laws. Many Western countries have extended such laws to public statements deemed insulting or derogatory to any group, race or gender.

For example, in a closely watched case last year, a French court found fashion designer John Gallianoguilty of making discriminatory comments in a Paris bar, where he got into a cursing match with a couple using sexist and anti-Semitic terms. Judge Anne-Marie Sauteraud read a list of the bad words Galliano had used, adding that she found (rather implausibly) he had said “dirty whore” at least 1,000 times. Though he faced up to six months in jail, he was fined.

In Canada, comedian Guy Earle was charged with violating the human rights of a lesbian couple after he got into a trash-talking session with a group of women during an open-mike night at a nightclub. Lorna Pardysaid she suffered post-traumatic stress because of Earle’s profane language and derogatory terms for lesbians. The British Columbia Human Rights Tribunal ruled last year that since this was a matter of discrimination, free speech was not a defense, and awarded about $23,000 to the couple.

Ironically, while some religious organizations are pushing blasphemy laws, religious individuals are increasingly targeted under anti-discrimination laws for their criticism of homosexuals and other groups. In 2008, a minister in Canada was not only forced to pay fines for uttering anti-gay sentiments but was also enjoined from expressing such views in the future.

Speech is deceitful

In the United States, where speech is given the most protection among Western countries, there has been a recent effort to carve out a potentially large category to which the First Amendment would not apply. While we have always prosecuted people who lie to achieve financial or other benefits, some argue that the government can outlaw any lie, regardless of whether the liar secured any economic gain.

One such law was the Stolen Valor Act, signed by President George W. Bush in 2006, which made it a crime for people to lie about receiving military honors. The Supreme Court struck it down this year, but at least two liberal justices, Stephen Breyer and Elena Kagan, proposed that such laws should have less of a burden to be upheld as constitutional. The House responded with new legislation that would criminalize lies told with the intent to obtain any undefined “tangible benefit.”

The dangers are obvious. Government officials have long labeled whistleblowers, reporters and critics as “liars” who distort their actions or words. If the government can define what is a lie, it can define what is the truth.

For example, in Februarythe French Supreme Court declared unconstitutional a law that made it a crime to deny the 1915 Armenian genocide by Turkey — a characterization that Turkey steadfastly rejects. Despite the ruling, various French leaders pledged to pass new measures punishing those who deny the Armenians’ historical claims.

The impact of government limits on speech has been magnified by even greater forms of private censorship. For example, most news organizations have stopped showing images of Muhammad, though they seem to have no misgivings about caricatures of other religious figures. The most extreme such example was supplied by Yale University Press, which in 2009 published a book about the Danish cartoons titled “The Cartoons That Shook the World” — but cut all of the cartoons so as not to insult anyone.

The very right that laid the foundation for Western civilization is increasingly viewed as a nuisance, if not a threat. Whether speech is deemed imflammatory or hateful or discriminatory or simply false, society is denying speech rights in the name of tolerance, enforcing mutual respect through categorical censorship.

As in a troubled marriage, the West seems to be falling out of love with free speech. Unable to divorce ourselves from this defining right, we take refuge instead in an awkward and forced silence.

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British have invaded nine out of ten countries - so look out Luxembourg

Britain has invaded all but 22 countries in the world in its long and colourful history, new research has found.



By Jasper Copping 9:30AM GMT 04 Nov 2012

Every schoolboy used to know that at the height of the empire, almost a quarter of the atlas was coloured pink, showing the extent of British rule.
But that oft recited fact dramatically understates the remarkable global reach achieved by this country.

A new study has found that at various times the British have invaded almost 90 per cent of the countries around the globe.
The analysis of the histories of the almost 200 countries in the world found only 22 which have never experienced an invasion by the British.

Among this select group of nations are far-off destinations such as Guatemala, Tajikistan and the Marshall Islands, as well some slightly closer to home, such as Luxembourg.

Barclays PLC (LSE: BARC, NYSE: BCS) is a British multinational banking and financial services company headquartered in London, United Kingdom. It has operations in over 50 countries and territories across Africa, Asia, Europe, North America and South America and around 48 million customers. As of 31 December 2010 it had total assets of US$2.33 trillion, the fourth-largest of any bank worldwide (after BNP Paribas, Deutsche Bank and HSBC).

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