March 29, 2013
The Supreme Court ruled last week that the First Sale Doctrine of copyright law protected a student’s right to sell overseas textbooks in the U.S., even in a way that competed with the sales tactics of the publisher of those textbooks.
I wrote about Kirtsaeng v. John Wiley & Sons back in October, when the Supreme Court first heard arguments, and I have been waiting with interest to see what the outcome would be.
Here’s a quick recap: A student at Cornell made about $900,000 selling textbooks that his relatives sent him from Thailand before the publisher of some of those books found out what he was doing. Because the books were cheaper in Thailand than they were in the U.S., the student was able to sell them for less than other retailers, even after he marked them up and made a handsome profit. Fearing an unraveling of its business model, Wiley & Sons sued.
The student, Supap Kirtsaeng, argued that his actions were protected by the First Sale Doctrine, which essentially says that after a consumer buys a physical expression of a copyrighted work, such as a book, movie or CD, he or she can do whatever he or she wants with it. While the consumer has no claim to the copyrighted work expressed in the physical object, he or she can buy, sell, give away or destroy the physical version he or she owns.
For its part, John Wiley & Sons argued that Kirtsaeng’s conduct was not really the kind intended to be protected by the First Sale Doctrine. It also tried to argue that U.S. copyright laws shouldn’t apply to material produced in or for overseas markets.
Those arguments did not get too far with the court, which ruled 6-3 in favor of Kirtsaeng.
I’ve spent a little time reading statements from various business and academic groups and I’ve been impressed at sheer variety of their opinions and perspectives. In my next column, we will take a look at a few of them.