March 20, 2013

Supreme Court upholds First Sale doctrine


Kirtsaeng vs. Wiley, a case that MobyLives has been following since April last year, has finally been resolved in the Supreme Court. The Court, by a 6-3 margin, held that the doctrine of First Sale allows items legitimately purchased overseas to be resold, lent or given away by their owners, just like those bought in the United States.

Essentially, companies cannot prevent their products that have been bought overseas from being resold in the United States — in what is sometimes called the grey-market.

The Supreme Court heard an appeal from Californian Supap Kirtsaeng, who financed his studies at Cornell University and the University of Southern California by reselling textbooks on eBay that had been purchased in Thailand. All this, of course, without the publisher, John Wiley & Sons’, consent. The Second Circuit originally awarded the publisher damages for copyright infringement, but this decision has now been overturned.

According to the Washington Post, the main concern was whether U.S. copyright protection applies to items that are made abroad, purchased abroad and then resold in the U.S. without the permission of the original manufacturer. The Court certainly made the right decision in deciding that it does, given that a huge number of goods sold in the US, including books, are made overseas. To be reductive about it,  following Wiley’s case to its natural conclusion, we would have no right to re-sell our holiday souvenirs.

Of course, the decision is good news for the multi-million dollar reselling industry, including ebay and Costco, but it’s also good news for libraries, many of whom filed amicus briefs to the court, along with used-book dealers and museums. As Justice Stephen Breyer wrote in the majority judgment,

“Associations of libraries, used-book dealers, technology companies, consumer-goods retailers, and museums point to various ways in which a geographical interpretation would fail to further basic constitutional copyright objectives, in particular ‘promot[ing] the progress of science and useful arts…The American Library Association tells us that library collections contain at least 200 million books published abroad … ; that many others were first published in the United States but printed abroad because of lower costs; and that a geographical interpretation will likely require the libraries to obtain permission (or at least create significant uncertainty) before circulating or otherwise distributing these books…How, the American Library Association asks, are the libraries to obtain permission to distribute these millions of books? How can they find, say, the copyright owner of a foreign book, perhaps written decades ago?…Are the libraries to stop circulating or distributing or displaying the millions of books in their collections that were printed abroad?”

Parties who supported Wiley in court claimed that the decision would result in higher prices overall, by limiting their ability to sell products for cheaper prices in overseas markets. This may be, but in the age of the internet, geographical barriers in bookselling and pricing are a thing of the past. The Supreme Court can’t turn back time for Wiley.

The First Sale doctrine is a holy thing that is being slowly eroded. Not only by cases such as Wiley’s, but by insidious developments like Kindle contracts, which ensure you don’t really own your books, let alone allow you to give them away after purchase. This time around, the Court thankfully recognized that the purpose of copyright law is not to protect a corporations’ way of doing business.

Ariel Bogle is a former publicist at Melville House.