I started researching and writing about piracy in 2008. Focused on gathering and analyzing data, the first year or so of my piracy work pursued “what is happening”, somewhat separate from policy issues in areas like copyright and the business issues related to DRM.
That started to shift in 2010, around the time that we celebrated the 300th anniversary of the Statute of Anne, the first copyright law. Shortly after, I read William Patry’s Moral Panics and the Copyright Wars, which strongly argues that prevailing copyright laws are unbalanced, favor entrenched business models, stifle innovation and encourage piracy.
Right now, the Supreme Court of the United States is considering a case that could have widespread implications for so-called “first-sale” rights that give buyers the right to resell physical media they have bought. Book publisher John Wiley & Sons is challenging an individual, Sudap Kirtsaeng, “who was (legally) buying textbooks that were sold in Asia, and then reselling them in the US.”
Wiley contends that, because the books were manufactured (printed and bound) outside of the United States, the first-sale doctrine does not apply. In a split decision, the Second Circuit upheld Wiley’s challenge, setting the stage for the Supreme Court to rule on the case.
Kirtsaeng is engaged in a kind of textbook arbitrage – source the materials at a lower price, resell them in the United States at a higher price. It’s easy to see why that practice aggravates Wiley, but a broad Supreme Court ruling potentially affects used-book businesses as well as secondary markets on services like eBay and Amazon.
This is far from the single biggest threat to publishing innovation, but it signals the increasingly intrusive nature of copyright law, which now is effectively “life plus 70”. Having to figure out if a book is printed outside the United States before you figure out if it’s still under copyright before you decide to sell it to your friend… it’s an invitation to do the simple thing, even if it is deemed illegal.
It is of little surprise, then, that skepticism grows about things like copyright term, much of it coming from the right, not the left. Reform remains a third-rail issue, though. After writing a memo advocating changes in copyright law, Republican Study Committee staff member Derek Khanna was advised that his job would end this month.
So we’re left with conservatives and libertarians leading the charge on copyright reform. Media companies that supported Democrats may take comfort in their ability to sustain the status quo, but don’t wish too hard. Stretched, rubber bands snap back pretty hard.
