Legal Question in Intellectual Property in Oregon

Although I do not have all the facts, it sounds as though this is just one of those shake-downs, in which copyright owners sometimes ignore copyright law in an effort to suppress competition from secondary markets. If so, you are not the only victim. Do the DVDs indicate where they were made? I ask only because there is a case before the Supreme Court that arrgues that if they were made outsie of teh United States, the 150+ year old first sale doctrine, codified in 17 U.S.C. �� 109 and 202, does not protect your right to sell them.

Section 202 says there is a difference between owning a copyright and owning a copy. Section 109(a) says that any owner of a copy, lawfully made under the Copyright Act, is entitled, without the consent of the copyright owner, to sell it, lend it, give it away, or whatever.

So, if the copies were made in the U.S. (and my own position is, it doesn't matter where they were made), and if they were made by or by authority of the copyright owner, and you are the owner of the copies, the Copyright Act says the copyright owner's rights are subject to your right to sell it -- something the law specifically entitles you to do.

Can they sue you? Yes. They can, even if they are wrong. But if they do, and the facts are as I described above, you should win, and the court may award you your costs and attorney fees.

My guess is that they are asking for $932 on the calculation that you would rather pay them to make it go away than pay a lawyer to defend you, but my guess is also that you should be able to find a lawyer willing to tell them where to stuff it for less than that, and perhaps also willing to represent you on a contingency basis in the event that they sue you. In fact, in light of the demand, you might find a lawyer willing to sue them first.

I wish you the best. These are hard times when such demands are made against your hard earned money. Most people tend to fold, just to put it behind them, but sometimes someone needs to rise up and not be bullied, and do everyone else a favor. The first sale doctrine is absolutely essential to our basic freedoms in so many ways, it is crucial that we defend it. If not, when you die, they could even go after your estate for leaving your books, CDs and DVDs to your heirs.

By the way, there is a case right now, Vernor v. Autodesk, where Vernor was threatened by Autodesk for elling on eBay. So far, Vernor has the upper hand, and the case is now on appeal. See http://www.eff.org/cases/vernor-v-autodesk. Assuming you are the owner of a lawfully made copy, you should do even better. (I blogged it, along with other first sale doctrine revelopments: http://interactionlaw.com/wordpress/).