Back in October of 2012, I posted an article that’s gotten a surprising amount of traffic over the past few months entitled When Your Stuff Isn’t Your Stuff, and in it I discussed the threat to First Sale Doctrine that the Wiley v. Kirtsaeng case was presenting for us all. Well, it’s been four and a half months now, and we’ve finally had a decision handed down from the Supreme Court on March 19th: a 6 – 3 decision in favor of Supap Kirtsaeng. First Sale is safe again for the time being and the “parade of horribles” has been marched back into the wardrobe, although tentatively.
As always, Joe Mullin over at Ars Technica has an excellent breakdown of the decision available for those who are curious. I shall keep my analysis to a minimum, but would like to point out that Justice Steven Breyer’s commentary regarding the incident clearly not being piracy, but lawful purchases and resale was a welcome one… even despite Justices Ginsburg, Scalia and Kennedy’s decisions and Justices Kagan and Alito’s commentary suggesting Congress find a way to modify the law to allow for and protect the sort of regional price discrimination that caused this situation to begin with.
It’s a small victory, but a welcome one. However, it’s only but one skirmish in the larger waging war of intellectual property ripping across the judicial landscape. Although First Sale has been protected for the time, we still have other major issues like the recently repealed DMCA exemption for users carrier unlocking their cellphones, that despite FCC and White House talking points towards restoration of the exemption, might be fruitless anyway due to existing free trade agreements. Slowly but surely, we are continuing to have our own rights and understandings of what ownership truly is challenged and stripped from us due to draconian, and frankly insane, overreaching copyright law.
Let’s take a brief flight of fancy, shall we? Let’s imagine a world where Moshe (Moses) decided to copyright G-d’s Ten Commandments, and that every time that copyright was about to expire there on Exodus 20 or the stone tablets themselves, a team of Levite priest-lawyers with all the cunning and ruthlessness of a Disney legal department charged with never letting Steamboat Willie go into public domain extended that copyright out over the past 3500 years or so. Suddenly, we stretch this ridiculous line of thought out, and we have Yeshua staked to the cross on Golgatha for our sins and intellectual property theft of His own Heavenly Father’s works. I, of course, am posing this idea as a bit of tongue-in-cheek hyperbole… but it’s only humorous in so much that the modern state of copyright law’s runaway madness rings true to this idea.
Intellectual rights infringement ceased being a wronging of private parties this past decade and became one of criminal nature on a federal level. The past 40 plus years of changes to copyright law in the United States has brought about such a radical shift to its tone and purpose that people could theoretically be sent to prison now for whistling a Justin Bieber song in public without paying a license or obtaining permission under the current scope and definitions. This isn’t to say that the MPAA has the stones yet to actually do that to someone, but people used to think the Copyright Alert System would never fly, either. Clearly, when the average citizen now unwittingly commits three felonies a day in a world of ubiquitous camera surveillance, a technological network of databases that never forget, and a government that doesn’t need a warrant to watch you… is it really that much of a stretch to imagine anymore?
Of course, bringing this whole mess up, one might ask, “Daley, what do you propose we do about this?” Good question! Unfortunately I don’t have a solid answer. There’s the suggestions I made last time like continuing to support your local libraries, librarians and the ALA, or the Owners Rights Initiative, or even the EFF just for starters. I could also trot out the old OPTIMISM!™ saw and say that if we just stand up and make our voices heard that intellectual sanity will reign supreme and fix everything, but it’s pretty clear that the inmates are running the asylum these days. At the end of the day, all we can do is be aware of these changes and do what we can to protect ourselves and our communities or draw that necessary line in the sand. This country needs a desperate amount of tort reform, copyright and patent reform, and general levelheadedness amongst a litany of other things that keep getting lost in the shuffle of divisionist finger pointing, irrational anger and bloodlust that’s swept over the populous.
Perhaps the best thing any one of us can do is to simply embody and live an honorable life. Be that change within our communities that we desire. Treat others the way we wish to be treated. It might not necessarily stop this freefall into madness, but it could at least slow the descent.
Photo by Horia Varlan and licensed under Creative Commons Attribution 2.0 Generic (CC BY 2.0).