Re: International textbook editions

[John Mitchell <john@xxxxxxxxxxxxxxxxxx>]

Cindy,

You are speaking of an issue of huge proportions -- and one the  
Supreme Court will consider (whether to grant cert) on September 29,  
2009. At issue here is the U.S. textbook publishers' claims that  
Section 109 of the Copyright Act (aka the first sale doctrine  
codification) does not apply to copies "made" outside of the United  
States.

The Supreme Court case involves a suit by Omega against Costco because  
Omega was fleecing U.S. consumers by discriminating against them in  
price. ($1,700 watches Costco was selling for $1,200 because it was  
buying them abroad). Omega could not prevent these sales, so it  
resorted to copyright law by embossing a small copyrighted logo on the  
backs of watches, and then sued Costco for infringing its distribution  
right. Costco won at the DC level, but Omega won on appeal to the 9th  
Circuit, which applied what it considered to be binding precedent,  
concluding that Section 109's reference to "lawfuly made under this  
title" means "made in the U.S.A." and, therefore, copyright holders  
who make their copies abroad have no such limitation placed on their  
distribution right.

Major textbook publishers are taking the same position, because U.S.  
students typically have higher incomes (or enjoy financial aid) with  
which to buy expensive textbooks that markets in India and China, for  
example, would not be able to afford.

I've found that some of the notices are bogus (i.e., they say it is  
unlawful to sell them in the U.S., yet the inside says it was printed  
in the U.S.), but often they are in fact printed overseas.

I am currently defending a woman who was selling Chinese editions of  
the books to give a price break to students here. We are now awaiting  
a ruling on cross-motions to dismiss in the SDNY. It is the same issue  
on appeal in Costco.

Let me know if you wish more details, but the parents should rest  
assured that owning such a book is not infringement. The publishers  
are trying their best to prevent price competition from secondary  
markets and parallel imports, not to protect any copyright interest,  
but to protect an artificially high non-competitive price.

Our Answer to the Complaint by two publishers outlines what I consider  
to be some of the major antitrust implications of what the publishers  
are doing, but the interpretation of Section 109 is front and center.  
The publishers have sued a number of online sites, most of which just  
settle or have default judgments entered against them. My client  
decided to fight.

In my judgement, the parents should be pleased that Amazon appears  
unconcerned. It should not have to be, if the books are non-infringing  
copies, no matter where the books came from. If I were a copyright  
educator, I would applaud the purchase of the lower cost legal  
alternative. The publishers are, as we allege, misusing copyrights to  
restrain lawful price competition. And they are misinterpreting the  
law -- a law on the books for 100 years, based on jurisprudence dating  
back 150 years.

John

____________
John T. Mitchell
http://interactionlaw.com
1-202-415-9213



On Sep 18, 2009, at 3:39 PM, claudia holland wrote:

> I was recently contacted by a parent who had purchased his college  
> bound
> child a textbook from an online source. He bought a hard copy
> mathematics textbook through a vendor represented on Amazon.com. The
> online information did not indicate that the book was an international
> edition of a Pearson publication that was "illegal" to purchase for  
> use
> within the US or Canada. When the parent received the shrink-wrapped
> text, there was a notice plastered inside the wrapping on the book
> itself with language warning consumers about these limitations of use.
> The book came from Malaysia, apparently, and was advertised at less  
> than
> one-third the cost of the text in the US (~$50 vs ~$180). No wonder he
> bought it.
>
> The parent was perturbed for several reasons: 1) the exorbitant mark- 
> up
> for the same exact book available in the US, 2) the lack of consumer
> information from the Malaysian vendor (& the fact it was shipped to  
> the
> US at all, given the warning), and 3) the lack of concern on the  
> part of
> Amazon.com whose service was being used by the Malaysian vendor. As a
> copyright educator, how does one address this dilemma? Students and
> their parents want to do the ethical thing and purchase a work from  
> the
> rightful content owner. In this case, they found out they are being
> fleeced by those who scream the loudest about their distribution  
> rights!
>
> Claudia Holland
>
>
>
>
>
>
> [***** removed an attachment of type text/x-vcard which had a name  
> of chollan3.vcf]