Because of a legal rule known as the “first sale doctrine,” people who buy books or music or other copyrighted works are allowed to resell them to friends or a used book store without seeking permission from the owner of the copyright. As Slate’s John Villasenor explains, “if you legally purchase a Taylor Swift CD in the United States, you are free to lend it to a friend who lives down the street or sell it at your garage sale next spring.” Yet, because the federal law that permits such lending or resales is, in the words of one federal court, “utterly ambiguous,” it may not apply to copyrighted works that are purchased overseas.
That’s the issue facing the Supreme Court today in Kirtsaeng v. John Wiley & Sons. The petitioner, Supap Kirtsaeng , started importing and reselling textbooks manufactured by John Wiley & Sons on eBay after noticing that prices were significantly lower in his native Thailand. Wiley claims such resales of imported textbooks is illegal. As Vilasenor explains, a victory for Wiley could create a great deal of uncertainty for consumers:
“Taylor Swift and her record label are American, but suppose her CDs are “manufactured” in Asia. Does that mean you can’t lend the CD after all? What about items that we know are manufactured overseas? Are we committing willful infringement if we donate a Chinese-manufactured laptop computer to a neighborhood school?”
Other questions loom beyond the concerns raised about how this affects the resale of goods manufactured internationally. What if you pick up a book from a vendor on the streets of Rome can you bring it back with you? What about works of art? Foreign language sections of libraries? How will this affect digital markets, where things are already complicated by copyright owners’ desire to keep consumers from copying and distributing pirated material? What if you purchase a game online that was coded in the U.S. but the server you downloaded it from was hosted internationally? Concerns around these and other questions resulted in Kirtsaeng receiving support from a diverse constituency of tech giants, libraries, resellers, and art museums.
Yet Wiley also has good reason to want to prevent scheme’s like Kirtsaeng’s. Selling books at a higher price point in the developed markets allows them to extend sales to developing markets at a price point feasible for consumers with lower standards of living. American students may be able to afford a $60 textbook, but that price would be utterly crippling in Thailand. The challenge for the Court — or more appropriately, for Congress — should be to figure out how to protect Wiley’s legitimate need to sell its products at prices its international consumers can afford without shoving American consumers into an unpredictable bedlam.
The outcome of this case likely turns on just one person, Justice Elena Kagan. Two years ago, the justices split 4-4 in a similar case with Kagan recused.