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It's a legislative issue not a judicial one. The law on the matter is settled and has been for a century.
Congress can create legislation any time it wants.
The simplest solution is limiting the number of copies of something someone can resell as 'noncommercial' use.
If you resell your one iPhone 4 that seems very different than a store important them and selling them below local market value for a few Milion dollars a year.
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