Interesting decision out of the supreme court this week: SCOTUS has decided that items made outside the United States can be resold inside the country using the ‘first sale’ doctrine. The case involved a Thai student who resold textbooks that were first purchased overseas by relatives. Simply a case of a student selling textbooks, right? Most of us likely did that in college. Of course, most of us didn’t do it to the tune of $900,000, like Supap Kirtsaeng did. No small-timer, here.
Look, copyright law is a mess. It’s clear at this point that congress will listen to donors and try to extend copyright as far and as fast as it can, damned to the consequences to freedom of expression. That’s why this is such a (to me) good sign. Even though I’ve made my living with copyrighted items for most of my adult life, I don’t hold that it should extend forever and a day like most holders seem to. This is a first crack in the glass of the monolithic copyright laws and, with luck, will allow for more such.
But it’s probably not a happy day for firms that rely on copyrighted works for their income. I can acknowledge that. How it impacts those companies is likely to be small at this point, but now worth watching in case similar cases show up in the next ten years or so. There are also some clear winners.
The Walt Disney Company (NYSE:DIS)
The Walt Disney Company (NYSE:DIS) is one of the most ardent defenders of copyright and trademark laws. At this point, some of the stronger opponents of existing laws call them ‘Mickey’ laws because of the belief that they’re all about The Walt Disney Company (NYSE:DIS) protecting content featuring their famous symbol. I don’t take it that far, but it’s clear that The Walt Disney Company (NYSE:DIS) will do whatever it can to protect its deep catalog of intellectual property. A major loss of the control of how people use and sell Snow White and other older Disney works could significantly cost the media giant revenue.
Viacom, Inc. (NASDAQ:VIAB)
Another fierce defender of its intellectual property, Viacom, Inc. (NASDAQ:VIAB) works hard to protect its content. Viacom, Inc. (NASDAQ:VIAB) is one of the more aggressive senders of cease and desist orders to YouTube under the Digital Millennium Copyright Act, forcing the service to take down items that it believes violate its copyright. It’s a sign of things to come, in my humble opinion, that Viacom, Inc. (NASDAQ:VIAB) has to spend that much time and money (lawyers ain’t free) defending something that they did in the past. Any chink in the enforcement of copyright could harm the firm quickly.
Time Warner Inc (NYSE:TWX)
Another large media firm hoping to hold on to copyright in a digital world for as long as it can. It’s clear that actually controlling content in an international and networked world is impossible, so TWX and others depend on controlling the laws and working to land even harder on violators – even outside their ability to pay. Still, the company has reason. When a firm invests tens or hundreds of millions in developing a product there’s a certain justification in wanting to protect it as long as possible. The debate becomes how long that should be.
eBay Inc (NASDAQ:EBAY)
A clear winner in the supreme court’s decision this week, online auction site eBay Inc (NASDAQ:EBAY) found itself in an interesting position before the case. If works made overseas couldn’t be sold in the U.S. how would it be required to police such things on a site that is premised on anyone being able to sell almost anything? Given that the student involved had sold the textbooks in question on eBay Inc (NASDAQ:EBAY), I’m sure there were a bunch of IP attorneys watching this one closely. For now, it appears that eBay Inc (NASDAQ:EBAY) is off the hook, but if it had gone the other way I could have easily seen lawsuits aimed at punishing eBay Inc (NASDAQ:EBAY) for allowing people to violate copyright.
So, one more step in the ongoing copyright shuffle. It should be an interesting ten years or so as firms that hold intellectual property remain behind the curve of technology, and the law remains hugely behind both of them. Honestly, though, the most interesting thing about this case, and the one most indicative of the fact that this could go either way, is the split of the judges. Voting in Kirtsaeng’s favor (and against the holder of the copyright) were three republican appointees (Alito, Roberts and Thomas) and three democratic appointees (Breyer, Kagan and Sotomayor). Those voting against were similarly split (Scalia, Kennedy and Ginsburg). We seem to have an issue here that doesn’t admit of easy political or legal lines.
Good luck!
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The article The Troubles With Copyright Holders originally appeared on Fool.com and is written by Nate Wooley.
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