Crafty college student’s case calls First Sale Doctrine into question

October 26, 2012

Garage sales under the guillotineWhen I was in law school, it was always a nice end-of-semester surprise to find a friend who’d buy your textbook from a class you just finished. You’d always make more than the 75 cents the bookstore would give you for it, and although I really should review the U.C.C. every so often, let’s be realistic — that’s not the kind of book you want to keep unless you need a doorstop.

Evidently, Supap Kirstaeng had the same idea – and a much bigger entrepreneurial streak than I have. Kirtsaeng, a Thai national who got his undergraduate degree at Cornell University, had his family send him versions of his textbooks that had been published overseas, where the books were much cheaper. When he was finished with them, he’s turn around and sell them on eBay. But it isn’t likely Kirtsaeng was selling just his old textbooks. Apparently, he made between $900,000 and $1.2 million this way.

Now, you can’t make money like that on a venture like his without attracting some notice. Kirtsaeng was sued by textbook publisher John Wiley & Sons and on Oct. 29, the Supreme Court will hear their opening arguments.

At issue is whether the First Sale Doctrine, which holds that you can sell, give away or destroy your version of a legitimately purchased copyrighted work without interference from the copyright holder, applies to goods manufactured outside of the United States. Countries in Europe, Asia and South America all have different intellectual property laws than we do, so do we have the right impose the First Sale Doctrine (which we’ve observed since 1908) on intellectual property holders from those nations, when it has no place in their legal systems?

Of course, most goods are made outside of the U.S. these days, so the case has generated some cooperation from unusual bedfellows. The American Library Association, eBay and Goodwill have banded together to “educate member of Congress” about the First Sale Doctrine, and other supporters of Kirtsaeng’s cause have warned that chipping away at the First Sale Doctrine will run contrary to U.S.’ free-market, capitalist spirit (I mean, it could imperil the great American tradition of garage sales!).

I had assumed the First Sale Doctrine was pretty well-settled, so I was surprised to hear it was at issue in a Supreme Court Case in 2012. I have to admit, the idea that garage sales could become about as legal as stalls selling knockoff Rolexes and Nina Ricci handbags seems like it would require embracing a slippery slope type of argument. But then again, if John Wiley & Sons comes out on top, it will definitely add nuance to the First Sale Doctrine, and we all know how adding shades of gray to legal doctrines goes.