October 31, 2014

Supreme Court to Hear Case on First Sale of Imported Textbooks

The Supreme Court agreed on April 16 to hear a case on whether an overseas purchaser of a copyrighted work may resell it in the U.S. without the copyright holder’s permission. The petitioner is Supap Kirtsaeng, who resold textbooks published by John Wiley & Sons that were purchased overseas to U.S.-based students without the publisher’s consent. So far, a New York federal jury and a federal appeals court have both agreed with Wiley.

This isn’t the first time in recent memory that the Court has considered whether the “first sale” doctrine, which allows the resale of used books, DVDs, etc., applies to overseas purchases imported for resale. In 2010’s Omega S.A. v. Costco Wholesale Corp., the court held that it didn’t.

However, that was a 4-4 ruling because Justice Elena Kagan was recused from the case (she’d worked on it as solicitor general). Without a majority, the ruling didn’t set a precedent. And a precedent is especially needed because the Second and Ninth Circuit courts are split on the issue.

(After the Costco decision, the Library Copyright Alliance, whose members include the American Library Association (ALA), the Association of Research Libraries (ARL), and the Association of College and Research Libraries (ARCL), issued a memo suggesting a combination of defenses that would allow libraries to continue their existing acquisition and circulation practices.)

Public Knowledge, the Electronic Frontier Foundation and U.S. PIRG, had filed an amicus brief asking the Court to review current case, on the grounds that, among other examples, “Libraries, which rely heavily upon the first sale doctrine to lend copies of books to the public, are especially vulnerable under the Second Circuit’s stripped-down version of Section 109(a). Without the protection of Section 109(a) for foreign-printed books, libraries could be forced to affirmatively research the place of manufacture for every book they acquire, even if that acquisition is completed within the United States, and either refuse to stock foreign manufactured copies of books or seek countless licenses from copyright owners to offer those books to the public.”

Kevin Smith of the Duke University Libraries blogged when the appeals court decision came down, “The manufacturing clause that is at the root of this decision does contain an exception for the importation of books ‘for library lending purposes,’ but it does not say is that libraries can actually lend these books. There was no reason to say that, of course, since Congress clearly assumed that first sale would apply. But Congress didn’t anticipate the short-sightedness of these two judges. And the situation is even worse for video, since the exception for audio-visual works in the manufacturing clause only mentions ‘archival purposes,’ not lending. So potentially very large, and probably indeterminate, portions of a library’s collection in the Second Circuit (NY, VT and CT) may now be in a grey area – they can certainly be used in the library but may not be available for legal lending…. what I really fear is that publishers will begin to manufacture more of their works overseas and then try to demand a higher price – one that includes ‘public lending rights’ – from libraries.”

Other amicus briefs have been filed by eBay, among others; several retail organizations; and the American Intellectual Property Law Association. The Supreme Court is likely to hear arguments in Wiley vs. Kirtsaeng in the term that begins in October, according to Inside Higher Ed, and issue a final ruling by June 2013.

Meredith Schwartz About Meredith Schwartz

Meredith Schwartz (mschwartz@mediasourceinc.com) is Senior Editor, News and Features of Library Journal.

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