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Services » Scholarly Communication » Learn More About Scholarly Communication, Open Access, and Copyright » Copyright Cases and Related Litigation » Kirtsaeng v. Wiley (first sale case)

Kirtsaeng v. Wiley (first sale case)

The Kirtsaeng v. Wiley case centers on a copyright infringement case filed by John Wiley, a publisher, against Supap Kirtsaeng, a student who bought textbooks sold in Thailand, and re-sold them to American students on eBay.  

Kirtsaeng felt his actions were lawful under the first sale doctrine, which authorizes people to sell, lend, give away, or do whatever they want with their own personal copies of lawfully made and lawfully purchased copyrighted works.  Wiley, however, argued that the first sale doctrine applies only to works sold in the United States, and that by purchasing books printed and sold overseas, Kirtsaeng needed to seek authorization from the copyright holder (Wiley) in order to import them back into the United States.  The Ninth Circuit agreed with Wiley, and Kirtsaeng appealed to the Supreme Court, which held oral arguments on October 29, 2012, notwithstanding the government shutdowns in the face of Hurricane Sandy.

The case is important not just to libraries and educators who use books, music, and videos, that are foreign in origin, but for two other major reasons: One, many works that appear to be "US works" are in fact printed overseas.  And two, many works that are not traditional "copyrighted" works could be governed by this decision, simply by including a copyrighted work on their packaging or in the work -- for instance, shampoo bottle labels; watch face designs; and devices including electronic and software components, such as garage door openers, printers, and cars.  Resale markets of all sorts would be affected, from library booksales, to Goodwill, to eBay, to your own yardsale, requiring ordinary consumers to assess whether something they hope to sell has a copyright embedded, and if so, whether it was made overseas, and if so, whether a sale would be "fair use" (as Wiley argued).  

Expect a decision on this case sometime in spring 2013, or by June 2013 at the latest.  And immediately afterward, expect legislation to be filed in Congress to reverse or modify the decision. 

 

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Last Edited: 19 October 2014