There's a typo in the 3d para. and at the bottom. It should say 602(a) not 106(3).
106 delineates the rights. (And those rights are subject to 109.)
602 delineates what is infringement.
The dissent in the 2d Cir. case points out that 602 derives from 106. True, but there's no precedent that says 109 can subjugate 602. In fact, the S. Ct. in Quality King was quite clear: 602 is broader than 109.
If we're atlking about importing quantities of goods for resale in the U.S., either they cannot be imported or the importer will pay dearly in tariffs. That is how the major American corporations, who lobby for the the copyright laws, doing business globally wanted it. And that is how it shall be.
No court should be saying 109 trumps 602. This would open the floodgates to parallel imports. It would allow an industry to flourish that undercuts U.S. pricing, i.e. the prices American companies want to charge Americans.
These companies that sell goods in many markets worlwide are already unhappy with countries that allow parallel imports since consumers in those countries can potentially buy goods at the lowest prices worldwide, not just at the price an American company thinks consumers in that country should pay.
In sum, it destroys the differential pricing schemes these companies use to maximize profits.
Class actions are not about rounding up plaintiffs so you can shakedown BigCorp. That's only what enterprising American lawyers have made them. And that's what the public sees. Class actions are supposed to be about jusdicial efficiency. If enough plaintiffs all file suits with the same claims in the same court against BigCorp, the court is going likely to refuse to hear each one individually. Too much work. Courts are staffed by people who are lazy just like you and me. In nerd speak, developers do not keep answering the same questions again and again. They create FAQ's. The court will be more receptive to all these repetitive suits against BigCorp if the suits are filed as one: a class action. The court hears one case, and reduces its workload.
Given that we now have the means to easily coordinate group action via internet, e.g. group buying, crowd sourcing, etc., what's to stop people from coordinating group litigation. If enough people invidually file suits against Facebook with the same court, it leaves that court little choice but to encourage a class action. Companies like Microsoft can make you agree not to join a class action, but they can't stop you from filing a suit on your own for any and every claim. And if enough customers file the same suit in the same court, a class action may well be the result, even though the customers never sought to join one. And that's because class actions are not about shaking down BigCorp by rounding up plaintiffs. They are about reducing the workload of the court and the expense of hearing numerous suits all with the same claims and facts.
If a large contigent of Facebook users all resolved to sue Facebook at the same time in the same jurisdiction, _individually_, the results could be very interesting.
First of all, the title asks about iPod and you refer to iPad. But the real question is why do you care about the possibility that consumers might pay less for their iPads? Are you trying to keep prices high?
This is a simple issue of parallel importation. Americans pay more for the same products for which people in other parts of the world, like Thailand, pay less. That's because America does not like the idea of parallel imports. Other countries allow it because it lowers the price of goods to the consumer by giving them choice. The way America enforces its prohibition on parallel imports is, you guessed it, through rules on importation.
The First Sale Doctrine is not a defense to copyright infringement under S. 106(3). See below. That is a ridiculous argument. The Cornell math student was caught red-handed, he stood no chance on appeal and does not have a chance at winning at this level either. He was making obscene amounts of money (see evidence of his dramatically enhanced net worth introduced at trial) selling books that should have never have been allowed into the country. More than enough to support paying his tuition. Hardly a starving student.
So why is the S.Ct. hearing this one? Because the District Court said something very stupid and this needs to be fixed. The First Sale Doctrine does not apply to imports. Never has, never will. See below. Yet the District Court in refuting this losing argument chose to add some new reasoning of its own, instead of relying on the statute and sufficiently similar precedent, and made the erroneous statement that imported copies made elswehere are not covered by S. 109 because of the statutory construction. As everyone can see the statute is very ambiguous with respect to "lawfully made". And it's been that way for a very long time. There's no need to open that can of worms. The First Sale Docrine simply has never had an exception for imports and it's not ever going to have one. This is because the U.S. does not want parallel imports.
The S. Ct. is going to affirm the lower court decision but they will fix the District Court's blunder in trying to intepret the statute when it was wholly unnecessary. They will make it perfectly clear that the First Sale Doctrine applies to copies of US copyrighted works no matter where they are produced. They'll find a way to do it without opening a potetial hole in the Act by applying arbitrary interpretations of ambiguous language as the lower court chose to do. In nerd speak, the District Court has introduced a potentially major security flaw that puts copyright holders at risk. And the S. Ct. is going to fix it, proactively.
Sec. 109(a) [First Sale Doctrine]
"Nothwithstanding 106(3)..."
Sec 106(3)
[It's infringement] "to distribute copies . . . to the public by sale"
106 delineates the rights. (And those rights are subject to 109.)
602 delineates what is infringement.
The dissent in the 2d Cir. case points out that 602 derives from 106. True, but there's no precedent that says 109 can subjugate 602. In fact, the S. Ct. in Quality King was quite clear: 602 is broader than 109.
If we're atlking about importing quantities of goods for resale in the U.S., either they cannot be imported or the importer will pay dearly in tariffs. That is how the major American corporations, who lobby for the the copyright laws, doing business globally wanted it. And that is how it shall be.
No court should be saying 109 trumps 602. This would open the floodgates to parallel imports. It would allow an industry to flourish that undercuts U.S. pricing, i.e. the prices American companies want to charge Americans.
These companies that sell goods in many markets worlwide are already unhappy with countries that allow parallel imports since consumers in those countries can potentially buy goods at the lowest prices worldwide, not just at the price an American company thinks consumers in that country should pay.
In sum, it destroys the differential pricing schemes these companies use to maximize profits.