Imports no longer protected by first sale doctrine? | Comic AG 94 now printing

1. Draneor on November 19, 2008 at 3:20 pm

   Realistically, most of the market isn’t going to import so I’m not sure why it would be a problem for the industry. Plus, most people will pay more to overcome the language barrier, either of the product or of the retailer. If anything, I’d think the US anime industry might make more off of grey market exports than they lose to grey market imports. At least, I know if more people outside North America that import say R1 DVDs than import R2s.

   For that reason, I never understood why FUNimation enforced their “rights” on an over-priced OST. If they wanted to sell OSTs for that show, all they needed to do was under-price it–like Geneon did. Assuming they did have the rights to it.

   Export bans, such as Amazon’s policy on “software”–including music by Key Sounds and I’ve Sound–do piss me off though. If they expanded it, it would really upset me. I’ll be the first to admit I import far more than I buy domestically–either directly or through an importer. Mainly because Japanese products, in general, are of better quality and more in line with my tastes than American-produced Japanese products (except for many manga, which seem to often have a higher production value over here). Imports may be more expensive, but in many cases, I’m willing to pay the extra cost to get what I want. For the record, blocking the importation of Megami will not get me to buy Otaku USA. Nor will preventing me from blowing $120 on the LE of D.C. II P.C. get me to buy whatever US-produced game is on the market. I won’t buy more R1 anime just because I can’t import Kannagi or Clannad After Story. And it’s not like I don’t buy domestic goods or even re-buy them. I guess I don’t see how exporting anime goods from Japan through the grey market harms the Japanese industry.

   As far as college textbooks go, I may have a few international editions myself.^^U But a large part of the problem is the industry prices textbooks well above cost since they have a monopoly over a captive if creative audience. I do hope it gets over-turned.

2. Anonymous on November 19, 2008 at 9:20 pm

   I don’t really care about that importing issue because I buy American versions whenever I can. The only Japanese-market products I buy are the things that will obviously never get licensed without a market shift, ie, doujinshi and lolicon manga.

3. Simon on November 19, 2008 at 9:55 pm

   Anon–>
   I think this isn’t merely an importing issue, but another erosion of consumer rights.

   Here’s a hypothetical… let’s say a Japanese man with a huge anime collection immigrates to the US, then decides to put up his collection on eBay. Under this ruling, he may be committing copyright infringement. I don’t think that’s right. Yet this is the direction we’re moving towards… it’s like what’s happening with video games and software, where publishers are trying to make consumers believe that they’re entering a licensing contract rather than conducting a simple purchase.

   As a publisher/licensee, I understand the real concerns over reverse importing. But my conscience sides with consumer rights and fairness, especially since I think there are already effective ways for rights owners to deal with this problem; licensors can easily include language in contracts to obligate licensees to refuse sale to exporters/reverse importers.

   As a complete supporter of copyright, I think silly things like this actually undermine copyright in the eyes of the public.

4. Simon on November 19, 2008 at 10:10 pm

   Draneor–>
   Reverse importation does have real negative consequences, since licensors and licensees are often not the same companies… and even when they are, they’re still separate divisions with separate balance sheets, that must justify their own existence through their own sales. When buying imports, money is flowing through different channels, and that may affect the perception of value of licenses in foreign markets, hence importing affects both licensor and licensee.

   That said, as I mentioned in the previous post, consumer rights and fairness must trump financial concerns of companies.

5. Jeff Flowers on November 20, 2008 at 5:31 am

   Personally, I think the judge really overstepped himself on this ruling and I really hope that it is overturned.

6. Pingback from Journalista - the news weblog of The Comics Journal » Blog Archive » Nov. 20, 2008: The Dark Knight strikes out on November 20, 2008 at 7:19 am

7. Draneor on November 20, 2008 at 3:15 pm

   Simon:

   I do not understand who I am harming by importing say Clannad Full Voice. There isn’t a licensor for it in the US, and, as far as I know, no one is interested in it or any game like it. Even if there was a US release, I send far more money back to the Japanese industry than I would through a middleman. I’m having difficulty understanding how the Japanese industry is harmed by me importing goods not for sale in the US. It’s fundamentally no different than if I bought a plane ticket to Japan and then bought them. And certainly, it’s better than the other option: downloading it. In many cases, I end up buying the same product multiple times. Surely, that can’t be a bad thing.

   I admit I don’t know how the Japanese industry feels about this. I know Good Smile seems to understand many of its figures go overseas and has adjust its marketing because of it. Still, companies like Neowing are willing to export CDs and DVDs. Kinokuniya and Book-Off have overseas stores.

8. Simon on November 20, 2008 at 4:48 pm

   You probably aren’t harming anyone. I’m giving broad theories, not going through every single property one by one.

   That said, it could still be argued that significant importation may harm the *future* licensee. Or, by making the property less attractive to licensees, thereby reducing licensing fees or even killing any possibility of licensing, hurt the original producer. These things can go either way (who’s to say import popularity isn’t a gauge for the potential of the property?), and they are complex and hard to predict. So companies may have their own legitimate reasons to try to reduce imports… not that I agree with them necessarily, just that their motivations are not, you know, utterly insane.

   (However, to force such a thing by limiting first sale doctrine only to purchases within the US, that *IS* pretty insane.)

9. Draneor on November 20, 2008 at 7:13 pm

   I guess what I don’t understand is, given importing is usually expensive and has many barriers such as language, would enough people even do it to make it have significant effect either way? Assuming there isn’t a large price discrepancy like there was in the textbook case or a time gap.

   I don’t know. I’m not a businessperson, so I don’t really understand why you wouldn’t want to sell your product to as many people as possible if you could. Although I guess I can understand how say having a thriving anime music market in North American would be worth more to Lantis or Geneon than a minority of fans who import their music since a North American industry would expand the customer base to those who won’t import. And I guess if that minority was large enough, it could make the industry unprofitable.

   I suppose I’m really just looking out for my own interests though. But until they tell me to stop…

10. Anonymous on November 20, 2008 at 8:47 pm

    People complain about consumer rights, but it seems the judge was in the right here…American laws only apply to American products.

11. Simon on November 20, 2008 at 9:51 pm

    That’s not completely accurate… the courts had *not*, until now, clarified whether the first sale doctrine applied to legal products made outside the US. Personally, I think the decision in this case takes both consumer rights and copyright in the wrong direction, based on the example I gave above, because this essentially treats book purchases as if they were regional licensing agreements… and they’re not. Books are *tangible goods.* Tangible goods are *owned*, and ownership shouldn’t be tied down to geographic location.

    There’s a way for book publishers to prevent this without creating a restraint on consumers: they, or their distributors, should have refused the sale to the importers in the first place. That’s why this is the “first sale” doctrine… they can control the terms of the first sale, and refuse it if they feel the terms would not be met.

12. Simon on November 20, 2008 at 10:32 pm

    Draneor–>

    Hmm, let me try this example…

    Let’s say there’s a popular prose novel in Britain, “Jerry Blotter and the Necromancer’s Jewel”, and the publisher sells adaptation rights to a Japanese publisher, to create a manga for the Japanese market. Meanwhile, they also sell the North American adaptation rights to a comic publisher who has ties to a big movie distributor. The manga, which takes a few liberties with the story, becomes quite popular, and a small number are imported into the US and land in the hands of prominent bloggers, who rave about the manga online. Meanwhile, the comic version bombs. Perhaps the comic was just crummy, but the American comic publisher blames their low sales on the Japanese version diluting the property because of the changes it made to the story. Feelings are hurt, and the relationship between the Americans and the British sours. Feeling the Japanese publisher did not do enough to keep the manga within Japan, the British publisher blames them for killing their chances of landing a Hollywood film deal, which in turn ruins the possibility for any future collaborations between the two.

    Okay, I know this example is a huge stretch, but what I want to illustrate is that companies often have complex obligations that are not readily apparent, or easily understood, or even sensible… but that’s how it is. Reducing this down to mere unit sales would be an oversimplification.

13. Draneor on November 21, 2008 at 7:53 pm

    I think I get your point. That there can be negative externalities to knowledge of what another area gets. Although with the internet, even if no manga of “Jerry Blotter and the Necromancer’s Jewel” were exported from Japan, people would still know about it, and likely download it. So is the “problem” really that consumers are more educated these days about what a franchise is doing around the world? So we can hold an industry to a higher standard when it is impossible for the industry to meet that standard due to various reasons (say edits to censor content to meet sales or reduce legal risk–if there were no imports or the internet, no one would know there were edits). Also, I guess maybe the Japanese industry would rather the world not know that it makes and sells items like Moetan or adult dakimakura covers. Given how cultural sensibilities vary around the world, knowledge of certain products might damage the reputations of shows that aren’t related (like Anime becomes known for underage fanservice and thereby damages Miyazaki’s reputation). I mean, I’m OK with otaku culture because I love it. But I guess there is more to lose than gain by letting the world know about it.

    I guess it makes sense. I just don’t like it though. Something feels, I guess, wrong about telling me I can’t buy something because of my nationality and/or geographical location. I sound like a child, but it doesn’t seem fair.^^U And in the end, if it exists, we’re going to find out about it.

Comments are now closed.