<p>So would you technically be able to give away your European copyrighted-and-used textbook for free on the secondary market but charge, say $50 shipping and handling? Enquiring minds want to know.</p>
<p>Ronald Mann, Argument preview: Court tries again on copyright importation problem</p>
<p>As long as it is, even this summary cannot do justice to the myriad grounds on which the parties and their amici join issue.* Suffice it to say that there will be more than enough fodder for judicial inquiry when the Justices hear argument on October 29.</p>
<p>[Argument</a> preview: Court tries again on copyright importation problem : SCOTUSblog](<a href=“http://www.scotusblog.com/2012/10/argument-preview-court-tries-again-on-copyright-importation-problem/]Argument”>Argument preview: Court tries again on copyright importation problem - SCOTUSblog)</p>
<p>Apparently the Supreme Court sided with the book-reselling student, this upholding the first sale doctrine:
[Court</a> sides with student in case over textbooks - Salon.com](<a href=“http://www.salon.com/2013/03/19/court_sides_with_student_in_case_over_textbooks/singleton/]Court”>http://www.salon.com/2013/03/19/court_sides_with_student_in_case_over_textbooks/singleton/)</p>
<p>Happens with prescription drugs and US citizens travel to Canada to get meds which are cheaper than if RX filled in the US. So true about outsourcing jobs to other markets to take advantage of cheaper labor markets and US companies as well as our own government are just fine with that! This country is so broken and so profit motivated …as long as CEOs, boards of directors and stock holders benefit, a free market is lauded. I just try not to think about any of it, since it just upsets me and there doesn’t seem to be any solution.</p>
<p>As I thought, this case basically required the Court either to gut one of the two key statutory provisions, or essentially to make up some kind of compromise interpretation, and neither option was very satisfying in terms of judicial technique and role. Sure enough, that’s how it played out. The majority completely gutted the statutory provision that was admittedly intended to stop unauthorized importation of foreign-manufactured “gray goods”. It did not justify doing so on policy grounds (although it used policy arguments to explain why the contrary position was not acceptable). Instead, it relied on a hypertechnical combination of reasoning from a 1988 opinion and statutory structure to justify its position. (Essentially, the 1988 opinion had said that the statutory provision setting forth a copyright holder’s basic right to control distribution of copies was limited by the statutory provision incorporating the first-sale doctrine, that once a legal copy has been sold, its purchaser can re-sell it or otherwise use it without restriction. The provision banning gray goods importing said that importing a copy without permission violated the first statutory provision. So the Court held that the first-sale doctrine wiped out the restriction on importing, because the right supposedly violated no longer existed.)</p>
<p>I also said above that intellectual property law is highly politicized, but not along traditional lines. This case sure proves that – it produced the weirdest alignment of Justices ever. You have three blocs: </p>
<p>-- Breyer, Roberts, Thomas, and Sotomayor took the position outlined above.</p>
<p>-- Kagan and Alito agreed with them, but made clear they thought it was bad policy and that Congress needed to fix the statute to adjust the balance between the two key provisions in order to permit publishers to do what the publisher in this case had wanted to do.</p>
<p>-- Ginsburg, Kennedy, and Scalia basically adopted the U.S. government’s position, that you had to do something to make sense of the all three statutory provisions. They found the appropriate balance in positions the U.S. government had taken in international negotiations and in treaties, and in the legislative history of the gray goods provision (except for Scalia, because he will not use legislative history). Which wasn’t such a bad way to rely on someone else’s judgment to strike a policy balance, but really had a lot of trouble with the actual statutory language.</p>
<p>Pretty strange bedfellows! The Court’s three most liberal and three most conservative Justices found themselves agreeing with one of the others and disagreeing with their usual ideological bedfellows, and the Justice who usually defines the center of the Court was on the losing side. I have trouble believing there are many 6-3 cases with Thomas and Sotomayor on one side and Ginsburg and Kennedy on the other.</p>