Does the first-sale doctrine apply to items bought overseas? That was the question before the Supreme Court in Kirtsaeng v. John Wiley & Sons, Inc. It was an extremely important case that bode poorly for the consumer if the Court were to side with the publisher, but thankfully it proved to be pro-consumer in this case.
For those new to this particular case, it’s rather easy to breakdown. A student was sued by John Wiley & Sons after he had purchased the publisher’s textbooks overseas, at a much cheaper price, and sold them in the states for a profit. The student argued that his right to sell the textbooks fell under the first-sale doctrine that allows consumers to sell copyrighted materials after they have been purchased. In other words, used book stores and libraries are legal because of the first-sale doctrine.
The publisher, on the other hand, argued that the first-sale doctrine only applied to items produced in the U.S. It didn’t matter if the work, like a textbook, was written in the U.S. If it was printed overseas, the first-sale doctrine didn’t apply under their interpretation of the law. Under their interpretation, it would be a violation of copyright for a consumer to sell any copyrighted item sold overseas in the U.S. without the publishers or manufacturers permission.
The Supreme Court, in a six to three decision, ruled in favor of Kirtsaeng’s argument saying that the first-sale doctrine applies to any copyrighted work regardless of its geographic origin:
In our view, §109(a)’s language, its context, and the common-law history of the “first sale” doctrine, taken together, favor a non-geographical interpretation. We also doubt that Congress would have intended to create the practical copyright-related harms with which a geographical interpretation would threaten ordinary scholarly, artistic, commercial, and consumer activities…. We consequently conclude that Kirtsaeng’s nongeographical reading is the better reading of the Act.
As you can imagine, this is an incredibly important ruling. There was far more at stake than just the ability to resell books or CDs. Computers, software and other technology also fall under the ruling, and the market for reselling these items would be all but demolished if the Supreme Court had ruled in favor of the publisher.
As TechDirt points out, the Supreme Court ruling is not the end of this particular fight by a long shot. Publishers were pushing hard for a ruling in their favor, and will now focus their collective attention on Congress to pass laws that limit what the first-sale doctrine actually covers. There’s also a chance that we’ll see limitations on the first-sale doctrine pop up in new international trade treaties.
Until then, however, we can rest easy knowing that one of the few protections we as consumers enjoy is safe for now.