For the past week or so I’ve kept myself from commenting on the lawsuits being filed in publishing, some of which I hinted were coming a long time ago. Why didn’t I want to comment?? Mostly because people just don’t understand what’s happening and how complex this all is. I didn’t want to have to shut off the Amazon bashers here. Or even read their screeds. (In fact, if that’s all you believe, like a religion, please do not bother to comment because I will not let the comment through.)
But this morning I had to break my silence on all this because there is even more news that affects all of us.
So for a clear-as-possible look at what the possible impact of the Supreme Court granting cert in the Kirtsaeng case, go read C.E Petit’s blog. Read it slowly and carefully and trust me, as he said, this is so complex, you won’t really understand it all without a legal degree. However, his point is clear. In bold letters he wrote, “There is no clear, universal answer.”
So go read. Worth the time. And thanks, C.E. for talking about this.
If you want more precise information about what the Supreme Court did this morning, go to ScottUS Blog. It talks about what the court did and what the meaning of the Kirtsaeng case might be directly.
The issue of the Kirtsaeng case is this: “How do Section 602(a)(1) of the Copyright Act, which prohibits the importation of a work without the authority of the copyright’s owner, and Section 109(a) of the Copyright Act, which allows the owner of a copy “lawfully made under this title” to sell or otherwise dispose of the copy without the copyright owner’s permission, apply to a copy that was made and legally acquired abroad and then imported into the United States?”
In essence, they are dealing with an aspect of “The First Sale Doctrine” of copyright law (Section 109(a)), which allows the sale of a rightfully-purchased work without the permission of the copyright holder. (Think used book stores or any normal bookstore. Or electronic store for that matter.)
Let me give you a few things to think about with all this in very plain English that will not be precise.
– Agency pricing (very simply put) is the attempt of the copyright holder (publisher) to dictate a price a retailer must sell a book for. (Before we only had Suggested Retail Price and retailers did not have to follow the suggestion. And note, the lawsuits filed last week are not copyright lawsuits under the “First Sale Doctrine.”)
– The filings against Apple and five publishers (very simply put) are because they (allegedly) got together and agreed on an the agency model to go against Amazon. And the publishers stayed together to enforce the new pricing system. (Why they didn’t do this ten years ago with the returns system is beyond me.)
– Having Justice Department accounting teams for the next few years roaming around in all five major publisher’s systems and money trails is going to cause some interesting shifts in publishing (to put it simply.)
– Kirtsaeng case (very simply put) is about the right of a seller to sell a rightfully-purchased copy of a work anywhere in the world they want at any price they want.
– The ruling on Kirtsaeng could have (depending on the ruling and the scope of the ruling) a major impact on the right of a copyright holder (author or publisher) to control (agency pricing among other things) how and where (which country) a copyright holder can control the sale of their product.
Let me give only one very, very simple example to get you thinking more on the deeper issues involved. Say a painter did a wonderful oil painting. Protected under copyright, of course. In the States this painter was selling his paintings for $500.00. But in Germany he sold a dozen of them to an art gallery for $200 each wholesale. (Thinking they would stay in Germany.) But the art gallery shipped them all to the States and had another gallery in the States selling them for $300.00. Thus the artist’s going price of $500 in the States was undercut to $300.00. And the artist lost money. Does the artist (copyright holder) have the right to control where and at what price his work is sold for?
That is (very simply put) what the Kirtsaeng case this morning is all about. And the decision will have an impact on how much a copyright holder can control.
Yeah, yeah, I know, all simple statements on very complex issues. Go read C.E.’s post. He kept it very simple as well, but far, far more accurate, while using direct quotes and legal interpretation.
(And remember, if you are an Amazon basher, please go spout on other sites. Your bashing won’t get through here, not because I am an Amazon supporter so much, but because you really don’t know what you are talking about.)