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10-08-2012, 02:16 PM | #11 |
Banned
Join Date: Jul 2009
Location: Claremont, CA
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Don't know much about Intellectual Property law, or the First Sale Doctrine, but the article is mixing some concepts up - maybe as a scare tactic.
First paragraph reads: "At issue in Kirtsaeng v. John Wiley & Sons is the first-sale doctrine in copyright law, which allows you to buy and then sell things like electronics, books, artwork and furniture, as well as CDs and DVDs, without getting permission from the copyright holder of those products." Not everything is copyrightable; only intellectual/artistic works of scholarship. So, this would apply to literary and musical works obviously, but would have less (to no) application to electronics, furniture, and other consumer products [which maybe the subject of trademark and/or patent, but not copyright]. For example, the recipe for a jar of mayo is copyrightable, but not the mayo itself, because the product is not a literary work. The "first sale" doctrine is applicable in the case referenced in the article because the kids was selling "text books," and maybe there is an argument that if he is going to be buying and selling texts books online for a living, he should have to do everything Amazon or Borders has to do, e.g. obtain a license from the author/publisher. On the other hand, if I buy and re-sell my one copy of GI Joe: Rise of Cobra, I could not be affecting the “market place” to any significant level. I should be free from any time of regulation. If the lower court ruling is passed, it would actually be interesting for the toy re-sellers. For the most part, literary characters are not copyrightable, only the story in which the character appears is copyrightable as a literary works; the characters are merely “ideas.” The analysis somewhat differs when there is a visual components, or a unique set of traits, and circumstances (originating) the character. Hence, Batman and Superman are copyrighted. Are the Joes unique enough to be copyrightable characters, or merely military type characters? Also, toys built to resemble copyrighted characters are not protected by copyright law unless they, themselves, are artistic expression. And so, Marvel Universe toy by Hasbro probably not copyright protected because they are only depictions of Marvel Universe characters. Meaning, the figures should not be a subject of copyright law, and may be resold without running counter to the copyright interests of Marvel [Hasbro has no copyright to the Marvel toys; Marvel has already been compensated by the Hasbro license]. On the other hand, Joe is completely owned by Hasbro, and so, if the characters are copyrightable, are the toys derived/depicting the characters, as being expressions of artistic work? |
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10-08-2012, 02:31 PM | #12 |
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Join Date: Dec 2010
Location: Texas
Posts: 46,198
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Well is Superman and Batman are unique characters, then wouldnt any named Joe character be able to be copyrighted.
also, if that is passed, and its applied to all TM or copyrighted materials....wonder how it would affect trades? since no money is exchanging hands but you are dealing with items of a perceived value. |
10-08-2012, 02:35 PM | #13 |
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10-08-2012, 03:16 PM | #14 |
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Join Date: Dec 2008
Location: Virginia
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Quote:
But anyway, the warning and all is nice, but there is literally nothing that can be done at this point. The Supreme Court is not beholden to public opinion, so all we can do is sit back and watch, and quite frankly, after Citizen's United, I'm fully expecting this Court will gladly come down on the side of the corporations on this one. And given that every single secondary market seller in the world banding together STILL probably doesn't make one tenth of what the corporations do in terms of money, they won't have the means to lobby Congress to (once again) change the copyright laws. But others here have brought up some good points. It all boils down to technicalities and how specifically they word their ruling if they do in fact come down on the side of the corporations. |
10-08-2012, 03:50 PM | #15 |
Crimson Guard
Join Date: Feb 2012
Location: Minnesota
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From the OP:
Quote:
Folks this is serious business. The US Supreme Court currently has a case on it's docket that if the lower courts ruling is upheld would gut the First Sale Doctrine.
If upheld, it would apply only to grey market imports, not goods consentually imported (which is probably 99+% of the market). This case regardless of the decision will not deprive you of the right to sell your toy, your car or great-granny's jewelery.
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10-08-2012, 04:01 PM | #16 |
Crimson Guard
Join Date: Dec 2007
Location: Charlotte, NC
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Quote:
From the OP:
Actually, this is not correct. This case applies only to copyrighted works where the Intellectual Property owner has not granted permission for import/export into another nation wrt Section 602(a)(1) of the Copyright Act. It looks to resolve the conflict between section 602(a)(1) with the Doctrine of First Sale. If upheld, it would apply only to grey market imports, not goods consentually imported (which is probably 99+% of the market). This case regardless of the decision will not deprive you of the right to sell your toy, your car or great-granny's jewelery. |
10-08-2012, 04:09 PM | #17 |
VALKYRIE
Join Date: Jul 2003
Location: Over the rainbow where your mom is at son
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4. No Political Discussion at all.
No Jokes, no flash animations, no political signatures, nothing. |
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