Writing Wrong Kirtsaeng Headlines

After the Supreme Court heard oral argument on the case of Kirtsaeng v. John Wiley & Sons, Inc., on October 29, 2012, many of the reports contained some inaccuracies, and some got it generally right. But who writes the wrong headlines?

Even when the story was basically correct, the headlines tended to be off base. Here are a few:

“Lawyer: Buyers have the right to resell copyright-protected works” Grant Gross (IDG News Service)
Wrong on three counts.
First, it is not about just “buyers”. It is about all “owners” of non-infringing copies. You need not have bought the copy. Ownership alone entitles you to dispose of it without the copyright owner’s permission. Second, it is not about reselling a “copyright-protected work” at all. Section 202 of the Copyright Act makes clear that copies and copyrights are different animals. Selling one has no bearing on rights in the other. What was being sold in this case were tangible “copies” of copyrighted works, not the intangible “works of authorship.” Finally, it is not limited to the right to “resell”, as explained under the next erroneous headline.

“Supreme Court Decision Could Impact Small Biz Re-selling” (Small Business Trends editor)
Well, yes, it could impact “small business re-selling,” but it could also impact large business reselling and no business re-selling. Moreover, it could impact all “distributions” under the Copyright Act, including gifts, lending, and renting. It could even leave an estate’s executor in a pickle over whether transferring that French painting to nephew Wally would be an infringement unless permission is obtained from the owner of the copyright, if you can find him, her, it or them.

“A ‘gray market’ gray area in copyright law” (L.A. Times Editorial)
“US Supreme Court weighs protection against gray market imports” (Reuters)
The popular “gray market” reference is a red herring. While a decision one way or another would indeed have an impact on “gray market” goods (imported against the wishes of the manufacturer), it should have the identical impact on goods imported into the U.S. and sold here by the U.S. copyright owner. Whether the goods themselves are “gray market” is not really a factor (though the textbook publishers have been rather successful in misrepresenting it as the only market in issue). The relevant fact is whether they were made in the U.S. or abroad. The textbook publishers are claiming (as the Second Circuit held), that even if they, themselves make the copies abroad, import them, and then sell them, they are exempt from the historic limitation on their distribution right that limits it to copies they actually own. In other words, the case deals with the fate of all copies that the U.S. copyright owner made, or licensed to be made, and which happened to have been made anywhere other than in the United States. Copyright holders who shift the manufacturing jobs abroad get special rights that no copyright owner foolish enough to manufacture the copies with domestic labor can enjoy.

The journalists who wrote the articles might not have chosen the false or inaccurate headlines, so be kind to them. But it is not that hard to avoid those errors, as Joe Mullin did: “Supreme Court seeks a way around ‘perpetual copyright’ on foreign goods” (ARStechnica)

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