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NEWS: U.S. Court Rules 1st Sale Doctrine Inapplicable to Imports


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tsukikage



Joined: 31 Aug 2002
Posts: 68
Location: Champaign, IL

PostPosted: Thu Nov 20, 2008 4:54 am Reply with quote
This is both worrying and confusing. Would this affect the Genki textbooks? And I can't imagine it would mean anything good for companies like Anime Nation.
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GATSU



Joined: 03 Jan 2002
Posts: 12682

PostPosted: Thu Nov 20, 2008 5:14 am Reply with quote
If the judge wants to encourage bootlegging, then it's his loss. Might as well get that copy of Ouendan 2 from that local store of mine before it's too late, though...
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sarsman45



Joined: 06 Aug 2006
Posts: 53
Location: an island "to the left"

PostPosted: Thu Nov 20, 2008 5:37 am Reply with quote
Well thats bull. If they can control sales of books after first purchase, how do poor college students purchase textbooks that are too expensive?
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nargun



Joined: 29 Mar 2006
Posts: 436

PostPosted: Thu Nov 20, 2008 5:55 am Reply with quote
... hang on.

The contract was enacted under non-US law, so according to US law, the judge says, US law on the sale of goods is not applicable to that transaction.

In that case... how does the US court get to make an order, here? It's explicitly denying the authority of US law over the subject matter.

You've got some right crap judges, in the US of A.
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Leon Evolon



Joined: 26 Sep 2006
Posts: 212
Location: Crazytowne

PostPosted: Thu Nov 20, 2008 6:58 am Reply with quote
I seriously doubt this will have any effect on our interests. I mean, this ruling only takes effect if the original company overseas has expressly stated that its material is not to be distributed outside of the native country. Though, it may make it harder for some companies to get their hands on certain imported merchandise.
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Draneor



Joined: 19 May 2005
Posts: 355

PostPosted: Thu Nov 20, 2008 7:42 am Reply with quote
Leon Evolon wrote:
I seriously doubt this will have any effect on our interests. I mean, this ruling only takes effect if the original company overseas has expressly stated that its material is not to be distributed outside of the native country.

Many Japanese products state, among other things, "For Sale in Japan Only." You will usually see this stamped on the back of a Japanese CD or DVD. Often in English.

If this ruling stands, would rental rights, which are generally specifically prohibited on Japanese products, be invalid in the US? Could BEI sue if I tried to sell a Lucky☆Star shitajiki, imported from Japan for personal use, on eBay? What about Japanese manga sold by Sasuga Books? Would a North American license prohibit that? Has Harmony Gold actually been right this entire time about Macross imports? It's interesting to think about, regardless of whether or not I think the industry would care about the personal grey market.
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samuelp



Joined: 25 Nov 2007
Posts: 1566
Location: Tokyo, Japan

PostPosted: Thu Nov 20, 2008 10:51 am Reply with quote
This ruling might technically be a problem, yes, but the intent is totally different in the case at hand.

You see, this all has to do with physics and math monographs and reference books..

No, really. Springer and a number of these publishing companies have this giant stranglehold on the science book market and charge inane prices for all their texts ($100 a book). But they found that in China, people just copied them, they got zero sales and 100% piracy. So they actually did the smart thing, which was print up special editions for China and sell them at reasonable prices (about 1/8th the price in the US), and lo! Chinese people (especially scientists, who aren't crooks normally) started buying their books again. And all was well, for a time.

Unfortunately, some smart people realized that by importing the Chinese editions of these textbooks (which by the way aren't written in Chinese, they are in english and just printed in China, since all the scientists speak english anyway and translating math tombs is pointless), they could sell them in the states to starving graduate students for a giant profit. It's THESE companies that got sued.

If anything, importers of Japanese products have the opposite problem, since prices in Japan are almost always higher than in the US. So I really don't think the spirit of this ruling would interfere with JApanese imports. On the other hand, it is worded somewhat generically...
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Colonel Wolfe



Joined: 05 Aug 2004
Posts: 370

PostPosted: Thu Nov 20, 2008 11:48 am Reply with quote
I think what might end up happening here is that retailers who are ordering merchandise from Japan for their customer might be subject to custom searches to prevent the material from entering the United States. However, I don't think that customers ordering from overseas companies will be subject to those types of custom searches.

The problem is that incoming packages are already subjected to random searches and you take the risk of anything you ordered being seized by customs.

I think this is just Funimation's way of saying we want you buying our more inferior merchandise rather than buying the original from Japanese businesses.

I also think that everyone is reading too far into this. What they're going to be on the lookout for is any books, magazines or other merchandise that are stamped with labels "for sale only in Japan" or "not for sale in the United States." The ruling is limited to those tags.
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triangle_man



Joined: 07 Jun 2006
Posts: 67
Location: Texas, USA

PostPosted: Thu Nov 20, 2008 3:22 pm Reply with quote
I can see the sales of the foreign editions of THE SAME EXACT BOOKS being restricted, but in the case of a different product, even if it happens to be based on a property licensed for US distribution by a company like Funimation, I don't think it should matter.

As far as I know, for instance, Funimation has no such CDs of their own, so why bother restricting the sales of the imported soundtracks? I suppose they might have the right to produce US editions of the soundtracks with translated packaging and liner notes, like Pioneer/Geneon did with R.O.D., FLCL, etc., but they haven't done anything of the sort that I know of.

And then there's the really cool special edition packages of certain dvds that you know will never make it over here. I'm thinking of things like Ghibli's 3-disc edition of Princess Mononoke and also Rebuild of Evangelion. If we want to spend (a lot of) our money on things like this, we should be able to without bootlegging.
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teh*darkness



Joined: 16 Feb 2007
Posts: 901

PostPosted: Thu Nov 20, 2008 4:51 pm Reply with quote
nargun wrote:
... hang on.

The contract was enacted under non-US law, so according to US law, the judge says, US law on the sale of goods is not applicable to that transaction.

In that case... how does the US court get to make an order, here? It's explicitly denying the authority of US law over the subject matter.

You've got some right crap judges, in the US of A.


Um, in this case, the defendants tried using a US law to protect themselves, which would allow them to resell foreign purchased books in the US. However, the law only applies to books made for purchase in the US, so the law does not apply, and the publisher has every right to tell them they can't resell these books outside the original country of purchase. This isn't just US judges. This could have happened in any country.

triangle_man wrote:
As far as I know, for instance, Funimation has no such CDs of their own, so why bother restricting the sales of the imported soundtracks? I suppose they might have the right to produce US editions of the soundtracks with translated packaging and liner notes, like Pioneer/Geneon did with R.O.D., FLCL, etc., but they haven't done anything of the sort that I know of.


Actually, Funimation did release several soundtrack CDs for FMA, namely the 3 season OSTs with the Limited Edition boxsets, and later the Best Compilation, with all the OPs and EDs included. So they were actually helping us out by keeping us from having to pay $40-$50 for CDs they would be releasing for $15-$18 or less. And if you really, really want to pay that much extra for the Japanese version, I'm pretty sure that those import sites that have been around forever and haven't gotten takedown notices from the publishers of the content they sell probably won't be bothered anytime soon and can continue business as usual.
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walw6pK4Alo



Joined: 12 Mar 2008
Posts: 8022

PostPosted: Thu Nov 20, 2008 4:55 pm Reply with quote
Textbook companies commit highway robbery with every single book sold. I would gladly punch every CEO in the face if I could. I only buy used books from now on.
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MokonaModoki



Joined: 30 Oct 2005
Posts: 430
Location: Austin, Texas

PostPosted: Thu Nov 20, 2008 5:01 pm Reply with quote
Colonel Wolfe wrote:
The problem is that incoming packages are already subjected to random searches and you take the risk of anything you ordered being seized by customs.

Customs, obviously, can choose to inspect any package they see fit, if only to verify that what is declared is what is is coming in. But seizure would only result if what is being imported is actually illegal.

US Code TITLE 17 > CHAPTER 6 > § 602(b) wrote:
...In a case where the copies or phonorecords were lawfully made, the United States Customs Service has no authority to prevent their importation unless the provisions of section 601 are applicable.

And no, the provisions of section 601 aren't applicable to anime or manga (although they certainly are for English language textbooks).

Also, the infringing importation section of the US Code explicitly doesn't apply to "importation, for the private use of the importer and not for distribution, by any person with respect to no more than one copy or phonorecord of any one work at any one time."

Colonel Wolfe wrote:
I think this is just Funimation's way of saying we want you buying our more inferior merchandise rather than buying the original from Japanese businesses.

Actually, at the time it happened that C&D was Funimation's way of saying "hey, don't sell this CD that you have no right to distribute, that we are are releasing exclusively in the second FMA Collector's Tin next week, and that you knew very well you shouldn't import when we had the rights to it because we'd already done the same thing with OST1." Rolling Eyes

Colonel Wolfe wrote:
I also think that everyone is reading too far into this. What they're going to be on the lookout for is any books, magazines or other merchandise that are stamped with labels "for sale only in Japan" or "not for sale in the United States." The ruling is limited to those tags.

Eh, no, this ruling specifically regards the importation of English language works for which copyright currently exists in the United States which are not printed in the US or Canada. samuelp nailed the circumstances involved here, and they were already thoroughly covered under the law. These guys just tried to use the 1st Sale Doctrine to get around it when they got tagged.

And those "for sale only in Japan" tags are fundamentally meaningless for any purpose except as notification to retailer (in or out of Japan) that they have no distribution rights to that product outside Japan. They have no applicability under US law that ICE would ever care about (if any).

triangle_man wrote:
I can see the sales of the foreign editions of THE SAME EXACT BOOKS being restricted, but in the case of a different product, even if it happens to be based on a property licensed for US distribution by a company like Funimation, I don't think it should matter.

Funimation's release of OST2 was November 15, 2005, less than a week after that article about the C&D to Akadot.

triangle_man wrote:
As far as I know, for instance, Funimation has no such CDs of their own, so why bother restricting the sales of the imported soundtracks? I suppose they might have the right to produce US editions of the soundtracks with translated packaging and liner notes, like Pioneer/Geneon did with R.O.D., FLCL, etc., but they haven't done anything of the sort that I know of.

OST 1, 2 and 3 were exclusive items released in the FMA Collector Tins. Fullmetal Alchemist Complete Best was released by Tofu Records on 5/30/2006 (in partnership with Funimation).

There are other Funimation products that have included soundtrack CDs as well (Witchblade leaps to mind).

Here's a breakdown of number of areas that this ruling has no applicability to at all:

Imports for resale of items for which there is no US copyright holder = not a problem. There is no copyright infringement.

Resale of items imported prior to the existence of a US copyright holder = not a problem. The importation itself can not infringe prior to the existence of the right. Sales do not infringe.

Import of items for personal use = not a problem. There is no copyright infringement.

Import for resale of items for which there is a US copyright holder = violation of the law. The importation itself is the infringing act. The injunction against sale of the imported items is the penalty. This is what happened to Akadot.
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triangle_man



Joined: 07 Jun 2006
Posts: 67
Location: Texas, USA

PostPosted: Fri Nov 21, 2008 12:46 am Reply with quote
teh*darkness wrote:


Actually, Funimation did release several soundtrack CDs for FMA, namely the 3 season OSTs with the Limited Edition boxsets, and later the Best Compilation, with all the OPs and EDs included.


Ahh... never got the tins, and a quick search or two didn't show me the comp. SO... I can understand, since they had their own edition coming out. I still don't think that other legit imports that don't have a cooresponding US release should be affected, though.
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LiuXuande



Joined: 23 Mar 2006
Posts: 197
Location: Chicago

PostPosted: Fri Nov 21, 2008 1:07 am Reply with quote
Ruling or not, this shouldn't really affect products where the IP license isn't held by any other company or distributor (for example, you won't see imports of the SHnY Character CDs, but you WILL see imports of stuff like, my recent favorite, the Macross F OSTs). In the former companies have something to lose in an already small customer-base, but in the latter the profit made is just by the middle-man...our friendly local distributor or online seller (such as ImportCDs or other Amazon Marketplace sellers).

Other options include

a) pirating, lol. Pirating is bad. Johnny Depp says "Only YOU can prevent piracy."
b) import from international resellers like YesAsia (who sells "outside of Japan" versions as well, that come out of Korea or Taiwan)
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saishokushugisha
Editor, Anime Insider


Joined: 18 Aug 2004
Posts: 101
Location: USA

PostPosted: Fri Nov 21, 2008 10:15 am Reply with quote
Draneor wrote:
Many Japanese products state, among other things, "For Sale in Japan Only." You will usually see this stamped on the back of a Japanese CD or DVD. Often in English.


It's true--I buy a lot of stuff during my trips to Tokyo, and it's pretty common to see this phrase in English, although mostly on CDs. I've never seen it on a toy or other good (of course, that doesn't mean it's not possible, just that I haven't seen it).

I think it's mainly music and anime companies that do this, because they strictly control where what versions of their products are sold. Just because one product says "For Sale in Japan Only" doesn't mean that the company doesn't want the product sold anywhere else ever, just that they have an agreement with the artist that this version will only be sold in Japan. Sometimes that's for entirely arbitrary reasons, sometimes for a specific version of a song that happens to appear on that disc, etc. It's a maze.
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