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.
- Oct. 16, 2012 : ARL webcast on the Wiley v. Kirtsaeng case
- Oct. 23, 2012 : Announcement: ALA joins Owners Right Initiative
- Oct. 29, 2012 : Talk postponed due to Hurricane Sandy - Kirtsaeng v. Wiley: Imports, First Sale, and Unintended Consequences in the Supreme Court
- Nov. 26, 2012 : Stephen Colbert featured the Kirtsaeng case in a "Judge, Jury, Executioner" segment onThe Colbert Report.
ALERT: TALK POSTPONED DUE TO HURRICANE SANDY.
The Supreme Court is holding oral arguments on Monday, October 29, in a copyright "first sale" case, ''Kirtsaeng v. Wiley''. The W.E.B. Du Bois Library at UMass Amherst will be holding a talk in advance of oral arguments, at 9:30, with coffee and refreshments. On the table will be how "Kirtsaeng" could affect ''everything'': from libraries' right to lend books, to your right to re-sell or give away books, music ... shampoo bottles, refrigerators, cars.
This case has been flying under-the-radar compared with the more familiar "fair use" doctrine cases, but its implications are mind-blowing. Publishers argue that the "import" rules in copyright give them the right to control the import of copyrighted materials made outside the USA. Libraries, consumer rights groups, and a host of others argue that the first sale doctrine should trump the import rules -- so that once the copyright holder has sold the item for the first time, they can't control the purchaser's re-sale, lending, or giving it away, no matter where it was made.
Why do we care? Well, not only do libraries buy a lot of foreign titles, but it turns out that a lot of books and journals and copyrighted material of all sorts have been outsourced for "manufacture". And, moreover, nowadays, all sorts of goods include copyrighted content -- everything from shampoo bottles with printed labels, to cars incorporating electronics and software. In other words, the outcome of this case could apply to anything electronic, written, artistic, or with a printed design that is made out of the USA.
So first thing Monday morning, Oct. 29, stop by for a discussion of this fascinating case. Caffeine, calories, and copyright conviviality provided. Contact Laura Quilter, firstname.lastname@example.org, with any questions.
Oct. 23, 2012
Hi all --
A notice from ALA about advocacy efforts around the Kirtsaeng v. Wiley case. This is the first sale case going before the US Supreme Court next Monday. If you're interested in more, I'm having a talk/discussion about Kirtsaeng next Monday morning (10/29, at 9am). (Bagels provided, IIRC!)
Today, the American Library Association announced that it has joined—as a founding member—the Owners’ Rights Initiative (ORI)—a coalition of retailers, libraries, educators, Internet companies and associations working to protect ownership rights in the United States.
The coalition was formed to champion “first-sale rights,” or ownership rights, as the issue will be taken up by the U.S. Supreme Court in the case of Kirtsaeng vs. Wiley & Sons, Inc. on October 29, 2012. The Supreme Court’s decision could have adverse consequences for libraries and call into question libraries’ abilities to lend books and materials that were manufactured overseas.
Read the Owners’ Rights Initiative statement below to learn more about the coalition and the case:
You Bought It, You Own It! Owners’ Rights Initiative Launches to Protect Consumers’ Rights
Coalition of businesses, associations, educators and libraries join together to protect ownership rights and global commerce
Today, a diverse coalition of retailers, libraries, educators, Internet companies and associations joined together to launch the Owners’ Rights Initiative (ORI) to protect ownership rights in the United States. ORI is committed to ensuring the right to resell genuine goods, regardless of where they were manufactured. The organization believes that this right is critical to commerce and will engage in advocacy, education and outreach on this important issue.
“The sudden erosion of ownership rights is becoming an alarming trend in the United States due to recent federal court decisions. Our position is simple: if you bought it, you own it, and you can resell it, rent it, lend it or donate it, and we believe the American people fundamentally agree. ORI will serve as a powerful voice to advocate for ownership rights while educating consumers, businesses and policymakers about this critical cause,” said ORI Executive Director Andrew Shore.
For over 100 years in the United States, if you bought something, you owned it and could resell it. Once the copyright owner makes the first sale, the right of ownership, and therefore the right to distribute, is transferred to the purchaser– a common law right referred to as the ‘first sale doctrine.’ Today, this fundamental ownership right is at issue in the Kirtsaeng vs. Wiley case, which will be argued before the Supreme Court on October 29, 2012.
The case centers on a graduate student, Supap Kirtsaeng, who bought authentic textbooks – published by John Wiley & Sons – through friends and family in Thailand and sold them online in the United States. Kirtsaeng was sued by the book publisher, who claimed that the right of first sale did not apply because the books were manufactured overseas, and he was therefore not authorized to sell the books.
“It is hard to conceive that Congress intended to incentivize manufacturers to move operations overseas, force American consumers to pay higher prices, make it hard for us to donate our own stuff to charity, and cripple the ability of libraries to lend books—without saying anything like that in the law,” said Marvin Ammori, a legal advisor to ORI and an Affiliate Scholar at Stanford Law School’s Center for Internet & Society. He explained that if the high court rules in favor of Wiley’s interpretation, “it could be illegal for American consumers and businesses to sell, lend, or give away the things they own– but only if the company happened to have manufactured the goods overseas and put a little copyrighted logo or text on them. But being able to sell your own property is a fundamental liberty recognized for centuries and a pillar of a market economy. Where a product was manufactured should be irrelevant for this fundamental right.”
ORI members are concerned that loss of basic ownership rights through a misinterpretation of copyright law could have significant, adverse consequences for global commerce and could impact consumers, small and large businesses, retailers, libraries and more. The founding members of ORI are:
- American Free Trade Association
- American Library Association
- Association of Research Libraries
- Association of Service and Computer Dealers & the North American Association of Telecommunications Dealers (AscdiNatd)
- Computer and Communications Industry Association (CCIA)
- eBay Inc.
- Goodwill Industries International, Inc.
- Home School Legal Defense Association (HSLDA)
- Impulse Technology
- Internet Commerce Coalition
- International Imaging Technology Council (ITC)
- Network Hardware Resale
- Powell’s Books
- Quality King Distributors, Inc.
- United Network Equipment Dealers Association (UNEDA)
- XS International
Hillary Brill, senior global policy counsel to eBay Inc. said, “The Supreme Court now has an opportunity to protect the right of small businesses and individuals to sell legitimate goods across borders, which will benefit consumers, businesses and the overall Internet-enabled economy. At eBay, we are passionate about using technology to open world markets. Ownership rights are fundamental to commerce. They provide both opportunities for entrepreneurs and small businesses to engage in global trade and provide more options for consumers at competitive prices.”
Joseph Marion is the President of the Association of Service and Computer Dealers International and the North American Association of Telecommunications Dealers (AscdiNatd), an ORI member association representing business that sells used and refurbished telecommunications and computer equipment. Marion explained that businesses in his industry, which employs over 100,000 people in the United States, would be jeopardized if they lost the right to freely import and resell products. “This threat is very real. Manufacturers would be able to eliminate competition and control downstream distribution of products by simply moving manufacturing overseas,” Marion said.
A Supreme Court decision against Kirtsaeng would also have implications for organizations that lend copyrighted goods, including libraries and companies like Redbox, which rents movies. “Anyone who has ever borrowed books or other materials should be paying attention to this case,” said Corey Williams, associate director of government relations from the American Library Association. “Libraries rely on the protections of the first sale doctrine in order to lend books. It is critically important for the Supreme Court to recognize the impact this case could have on libraries and the public that they serve.”
The Association of Research Libraries (ARL), an ORI member, further explained the impact of the case on students and educators. “University libraries collect and preserve materials of all kinds from all over the world to support teaching, learning, and research for our students, faculty and members of the public,” Prue Adler, associate executive director of ARL said. “The materials we own and collect are held in trust for the public and for future generations.”
Alfred Paliani, President of the American Free Trade Association and General Counsel of Quality King Distributors, Inc. a large distributor of consumer products and the prevailing party in Quality King v. L’Anza, the Supreme Court decision that upheld the first sale doctrine in the context of copyrighted merchandise produced in the United States said that, “the cross-border flow of legitimate, secondary and discount goods into the United States is a critical component of free market. AFTA and Quality King have been fighting this battle for over 20 years and welcome so many strong advocates to the fight.”
Andrew Shore, executive director of ORI added, “Ownership rights are fundamental and they matter to everyone: students, educators, large companies, small businesses, anyone who has every bought a good from a retailer or wholesaler or online seller, anyone who rents books or movies, anyone who wants to resell their items online or at a yard sale or give their property away to charity. Regardless of what the Supreme Court decides in this case, we are committed to fighting for ownership rights over the long term.”
More information about ORI can be found at www.ownersrightsinitiative.org.
Last Edited: 19 May 2014