Great news for libraries: SCOTUS rules in favor of Kirtsaeng in Kirtsaeng v. Wiley & Sons, Inc.
6-3 in favor of first sale.
- Opinion (pdf full text)
“Courts shouldn't assume that copyright law was designed to protect copyright holders' slowly evolving business models.”
—The limits of copyright law - latimes.comHow a Supreme Court ruling may stop you from reselling just about anything Wiley v. Kirtsaeng may be the IP case of the decade—affecting all from eBay to libraries.
arstechnica.com“On Monday, the US Supreme Court will hear arguments in a case that pits a major textbook publisher against Supap Kirtsaeng, a student-entrepreneur who built a small business importing and selling textbooks.
“This case is an attempt by some brands and manufacturers to manipulate copyright law.”
Like many Supreme Court cases, though, there’s more than meets the eye. It’s not merely a question of whether the Thai-born Kirtsaeng will have to cough up his profits as a copyright infringer; the case is a long-awaited rematch between content companies seeking to knock out the “first sale” doctrine on goods made abroad (not to mention their many opponents). That makes Wiley v. Kirtsaeng the highest-stakes intellectual property case of the year, if not the decade. It’s not an exaggeration to say the outcome could affect the very notion of property ownership in the United States. Since most consumer electronics are manufactured outside the US and include copyrighted software in it, a loss for Kirtsaeng would mean copyright owners could tax, or even shut down, resales of everything from books to DVDs to cellphones.”
Kirtsaeng v. John Wiley & Sons: A Post-Argument Discussion with Counsel for Parties and Amici » Program on Information Justice and Intellectual Property
pijip-impact.orgLast Thursday we had a lively discussion of this landmark decision, which vindicated the rights of libraries, used book stores, video rental businesses, and everybody who owns copyrighted goods. Check out the video.
LCA Issue Brief: Impact of Kirtsaeng Decision on Libraries
librarycopyrightalliance.orgJonathan Band explains the recent copyright decision on the scope of the “first sale” doctrine, its context, and its likely consequences for libraries in the US. In short, the Supreme Court’s opinion is a landmark victory that strengthens the legal foundation of library lending, and the Court’s extensive reliance on the Library Copyright Alliance’s amicus brief shows the importance of library engagement in policy debates. Continued vigilance will be necessary, Band explains, as rights holders disappointed with the Court’s majority opinion could go to Congress for a change to the law. Jonathan Band is counsel to the Library Copyright Alliance, whose members are the American Library Association, the Association of College and Research Libraries, and the Association of Research Libraries. Band practices law at policybandwidth.
Kirtsaeng Dissent Reminds Us of the Risks of Foreign Entanglements in Copyright Policy
project-disco.orgA post for the Disruptive Competition Project blog on a growing problem with how we regulate intellectual-property: The work of interpreting the law has somehow been grabbed by the people who negotiate trade agreements. And it took a dissenting opinion from a Supreme Court justice (who doesn’t seem to see this as a problem!) to get me to realize this.
So is the wonkiest headline you’ve seen on my work yet, or what?
Kirtsaeng v. Wiley: WTF?
I think I will be watching this one.
In brief:
“How do Section 602(a)(1) of the Copyright Act, which prohibits the importation of a work without the authority of the copyright’s owner, and Section 109(a) of the Copyright Act, which allows the owner of a copy “lawfully made under this title” to sell or otherwise dispose of the copy without the copyright owner’s permission, apply to a copy that was made and legally acquired abroad and then imported into the United States?”
This is what’s called the first-sale doctrine: once you buy a physical thing you own it and cannot reproduce it, but can resell it. The argument is that things bought overseas and then imported do not fall under first-sale doctrine, and that a copyright owner must permit sale of that object. (What happened is a publisher wants to make sure they can keep charging high prices in the US as opposed to overseas.)
Why this matters:
-A lot of things people buy at anime conventions are made overseas, and sold in Japan, then imported by vendors. You would probably like those vendors to be legally able to sell things (and usually Japanese companies don’t really care about overseas sales, so they wouldn’t be selling to the US themselves).
-Museums publicly display art made overseas and originally bought a long time ago overseas. Do you have to license the work that you already own from the artist’s estate before you can show it in an American museum? Apparently this also edges in on the legality of libraries and used product stores of any kind. (What if your library wants to lend (exhibit) a Tolkien book published in Europe? Or if you want to sell your used English Harry Potter editions?)
-As a crafter, I buy components from manufacturers who are in Asia (nobody really cares about magatama this side of the world, so there’s no other source), and would like to legally own the things I bought, so that I may run my crafting business. As a vendor, if I purchase jewelry online from a maker who is probably foreign, I would have to have their permission to sell it in my business, or I would be in violation of their copyright (despite individual product being un-copyable.) Which is all very weird.
“But Juno”, you may ask, “What’s wrong with keeping paperwork?”
…Among the questions under consideration are the concept that most everything you use is produced overseas, and a lot of products aren’t imported by the maker, but bought from foreign producers and then shipped here—or include things bought overseas. Car components bought and then incorporated into a car, phone parts, whatever.
I guess that companies envy the DVD region way of selling things—sure it was legal to buy a DVD overseas, but that DVD wouldn’t work in a regioned player. Allowed different price thresholds and multiple license sales in different countries, and probably made people a lot more money. Sony’s working on much the same for the PS4 from the sound of it—digital stuff requires file transferring, which tends to fall under ‘copying’ (even if you can’t use it without authorization anyway). But physical objects, when sold, are much harder to put such caveats and conditions on.
Where the line falls on whether or not you own what you have bought, that makes a big difference (a toy bought in China? A used toy bought in a used stuff store with parts contracted in China? A new toy bought at Wal-mart with the same?). It’s unlikely this will result in a decision against first-sale doctrine, but at the same time…
