Library pulls foreign DVDs per copyright violations

How many items do you have in your public library that violate copyright violations? Cleveland Public Library will have 800 or so less after this weekend. Seems their Chinese language DVDs caused a ruckus to someone because they yanked them all from the shelves.

I am forever telling librarians we cannot purchase the Rosetta Stone language CDROM - we need to get the network version. And then I hear - but other libraries have it.... Then there is the whole music CD lending - technically I think that is a copyright violation. But are we going to quit lending CD Music?

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The idea that someone

The idea that someone writing for LISNews would think that lending CDs was "technically" a "copyright violation" doesn't speak well for LISNews.

Why would lending CDs be a copyright violation?

Why would lending CDs by a copyright violation? The doctrine of first sale applies to CDs the same way it applies to books or other media.

Grey Market Goods

Under copyright law the holder of a copyright can control distribution of the work. A company can produce a DVD and only sell it to who they want. This is tempered by the "first sale doctrine." The U.S. has a concept called the first sale doctrine that says once an item is legally purchased you can resell the item and don't have to abide by the origianl copyright holders wishes. Problem is there is a Court of Appeals case from the 9th circuit that limits the first sale doctrine. There is a court case BMG Music v. Perez, 952 F.2d 318 where a person was legally buying music outside the country and then importing and reselling it. The court in the Perez case held that the first sale doctrine only applies to copies legally made and sold in the United States.

There is a current case that was decided May 13th of this year called Pearson Educ., Inc. v. Jun Liao. This was a suit against importers of english language chinese textbooks that were being imported into the U.S. and sold on Abebooks. The court in that case cited the Perez case and held against the importers. Here is the dicscusion of the issue in the Pearson case that gives a good overview of what is going on:

(From Pearson case decided May 2008)
A. Liability for Copyright Infringement

"A claim of copyright infringement under federal law requires proof that (1) the plaintiff had a valid copyright in the work allegedly infringed and (2) the defendant infringed the plaintiff's copyright by violating one of the exclusive rights that 17 U.S.C. § 106 bestows upon the copyright holder." Island Software & Computer Serv., Inc. v. Microsoft Corp., 413 F.3d 257, 260 (2d Cir. 2005) [*9] (internal quotation omitted). Among the exclusive rights enumerated in section 106 is the right to "distribute copies . . . of the copyrighted work to the public by sale." 17 U.S.C. § 106(3).

A copyright holder's exclusive right to sell copies of a work is tempered, however, by 17 U.S.C. § 109(a). That provision embodies the "first sale" doctrine and states that, notwithstanding the exclusive distribution rights provided to the copyright holder under section 106(3), "the owner of a particular copy" of a copyrighted work "is entitled, without the authority of the copyright owner, to sell . . . that copy." 17 U.S.C. § 109(a); see also Walt Disney Prods. v. Basmajian, 600 F. Supp. 439, 442 (S.D.N.Y. 1984) ("[W]here the copyright owner sells or transfer[s] a particular copy of his copyrighted work, he divests himself of the exclusive right in that copy and the right to sell passes to the transferee."). In other words, "once the copyright, owner places a copyrighted item in the stream of commerce by selling it, he has exhausted his exclusive statutory right to control its distribution." Quality King Distributors, Inc. v. L'anza Research Intern., Inc., 523 U.S. 135, 152, 118 S. Ct. 1125, 140 L. Ed. 2d 254 (1998); [*10] Lingo Corp. v. Topix, Inc., No. 01-civ-2863 (RMB), 2003 U.S. Dist. LEXIS 1437, 2003 WL 223454, at *4 (S.D.N.Y. Jan. 31, 2003).

However, the first sale doctrine does not necessarily protect persons who purchase copies of copyrighted works outside the United States and then import them into the United States for resale. Lingo Corp., 2003 U.S. Dist. LEXIS 1437, 2003 WL 223454, at *4. Section 602(a) of Title 17 provides that "[i]mportation into the United States, without the authority of the owner of copyright . . . of copies . . . of a work that have been acquired outside the United States is an infringement of the exclusive right to distribute copies . . . under section 106."

Recognizing that application of the first sale defense to all cases would vitiate section 602(a), courts have held that where the copy in question was manufactured abroad, section 109(a) does not provide a defense to a copyright infringement claim. See e.g., BMG Music v. Perez, 952 F.2d 318, 319 (9th Cir. 1991) ("The first sale doctrine in 17 U.S.C. § 109(a) does not, however, provide a defense to infringement under 17 U.S.C. § 602 for goods manufactured abroad."); see also Parfums Givenchy, Inc., v. Drug Emporium, Inc., 38 F.3d 477, 482 n. 8 (9th Cir. 1994); Lingo Corp., 2003 U.S. Dist. LEXIS 1437, 2003 WL 223454, at *4; [*11] Summit Tech. v. High-Line Med. Instruments Co., 922 F. Supp. 299, 312 (C.D. Cal. 1996) ("[T]he courts appear to be in agreement in one respect: sales abroad of foreign manufactured United States copyrighted materials do not terminate the United States copyright holder's exclusive distribution rights in the United States under §§ 106 and 602(a)." (internal quotation marks omitted)); CBS v. Scorpio Music Distribs. Inc., 569 F. Supp. 47, 49-50 (E.D. Pa. 1983), aff'd without opinion, 738 F.2d 421 (3d Cir. 1984). Indeed, because a first sale defense only applies to the sale of copies that are "lawfully made under this title," 17 U.S.C. § 109(a), the resale in the United States of copies manufactured outside the United States is not protected under the terms of the statute. See Quality King, 523 U.S. at 148; Lingo Corp. 2003 U.S. Dist. LEXIS 1437, 2003 WL 223454, at *4; Scorpio, 569 F. Supp. at 49-50.

The undisputed facts in this record demonstrate that plaintiffs hold valid copyrights in the works that are the subject of this lawsuit. The record also reveals that Liao and Gu have violated plaintiffs' exclusive right to "distribute copies . . . of the copyrighted work[s] to the public" in violation of 17 U.S.C. §§ 106(3) [*12] and 602(a) by purchasing copies of plaintiffs' textbooks that were manufactured abroad and subsequently selling them within the United States without the permission of the copyright holders. Therefore, summary judgment is granted as to plaintiffs' claims of copyright infringement.

so these are Region 6?

did they buy the wrong region dvds? the story seems to be mixing information so I can't tell if they're the wrong region code or what... who in that library is an expert on Chinese copyright that they would pull the disks?

Chinese law doesn't apply.

If the action took place in the U.S., it's usually U.S. law that applies, regardless of the origin of the copyrighted work.

That's odd

I wasn't aware that it was "illegal" for out of region discs to be had within US jurisdiction. That's gotta cause craziness in the Commonwealth of the Northern Mariana Islands, Guam, and American Samoa as those territories are considered "Region 1" even though it is a thirty minute to an hour ferry ride into "Region 3" when you go from American Samoa into the Independent State of Samoa. One must not forget the air traffic Guam and CNMI see as being another risk for flow of such materials.

Something feels wrong with this story. I do not mean that as a slam against The Plain Dealer. They were a model to look up to when I was a beat reporter for a newspaper in northeast Ohio. That being said, something feels wrong.
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Stephen Kellat, Host, LISTen

Yes, the story seems to be

Yes, the story seems to be confusing region coding and some obscure bit of international trade law. It really has nothing to do (so far as I'm aware) with copyright. It's not illegal to purchase a single foreign DVDs from a supplier in the country of origin. This is why any one of us can go on Amazon.fr or Amazon.jp and order anything available for sale. Depending on the circumstances, however, it may be illegal to import the discs in quantity to the US for further resale. So I'm curious to know where the library system was buying these discs.

It's a shame when confused and confusing stories like this appear because they only add to the sense of fear and apprehension about copyright.

Not a violation

>Then there is the whole music CD lending - technically I think that is a copyright violation.

No copy is being made when you lend a CD, hence no copyright violation.

American legal doctrines in play

The "right of first sale" is important in all this as it allows the purchaser to dispose of the physical item purchased in a way chosen. Such is how lending is otherwise possible without having to have a regime similar to Public Lending Right in the UK.
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Stephen Kellat, Host, LISTen

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