Wiley v. Kirtsaeng, S.Ct. Docket No. 11-697, one of the most important intellectual property matters to come before the Supreme Court in recent years, re-examines the “first sale” doctrine in copyright law. Stare decisis tells us that owners of the individual copies of copyrighted works are free to resell, lend, or give away their legal copies of books, paintings, software, DVDs, CDs, and so on without permission from the copyright holder, no matter where the copyrighted item originated. Now, though, book publishers, software companies, and the movie and music industries, who want to set different prices for different markets, argue that the doctrine should apply only to goods produced in the U.S.
John Wiley and Sons, a major textbook publisher, is doing battle over this very question with one Supap Kirtsaeng, a student from Thailand who studied at Cornell and USC. The case came into being when Kirtsaeng discovered that textbooks almost identical to those in the U.S. market were considerably less expensive in Asia. Being a money-hungry, entrepreneurial student, he had friends and family members send multiple copies of needed books to him, purchased at Asian prices, which he then resold to his fellow students at less than the cost of the US books but more than he paid for them. When Wiley discovered this, they sued Kirtsaeng for infringing their copyrights in the resold books; the Court of Appeals for the Second Circuit ruled in Wiley’s favor.
Kirtsaeng asks the High Court to reverse the Second Circuit’s ruling, arguing that the first sale doctrine prohibits Wiley from enforcing any copyright against the sale of any work that was previously sold.
This notion goes far beyond this one case. If the Nine Wise Ones decide that the First Sale Doctrine does not apply to copyrighted materials that do not originate in the USA, dissemination of copyrighted materials will need a massive overhaul. At this point, museums freely display copyrighted works; they would lose the ability to do that. Salvation Army and Goodwill Industries, who regularly resell copyrighted works at a deep discount, would be required to pay a royalty for resold works, which, necessarily, would raise the prices and have a heavy impact on cash-poor individuals. Ronald McDonald House, which freely lends copyrighted materials regularly to the families of very sick children staying with them, would have to charge a fee. Much of eBay’s business would come crashing down because the free exchange of already-purchased copyrighted works would be stifled. Even your neighborhood library would feel the pinch, and the free lending library would cease to exist.
And all because the publishers want to enforce different prices in different markets.
I don’t think much of this; I like free, community-supported lending libraries. I like being able to view modern art in museums. When I had cause several years ago to use the services of Ronald McDonald House, I very much appreciated the easy availability of DVDs and video tapes (that dates the time). The thought that the free lending and giving systems currently in effect would come to an end is an anathema to me.