When a Textbook You Brought Isn’t Really Yours . . . .
By Colin Conerton
For many students, buying textbooks online from private sellers is a wonderful way to save money while in school. Typically, the cost of a used book is substantially lower than buying a new one. Unfortunately for students and sellers, this money saving practice could be severely impacted in the near future.
This fall term, the United States Supreme Court will hear Kirtsaeng v. John Wiley & Sons Inc., a case concerning the first sale doctrine in copyright law as it pertains to goods purchased abroad and resold in the United States. The facts of the case are simple. In 1997, Supap Kirtsaeng moved from Thailand to the United States to attend Cornell University. While attending school in the United States, Kirtsaeng discovered his textbooks, published by John Wiley & Sons, were much cheaper in Thailand than they were in the United States. This is a typical practice for most publishers given the economical differences found in various countries around the world. Kirtsaeng had his family members buy and ship textbooks to him in the United States, selling them online and profiting almost $1.2 million dollars off of the sales. Wiley sued Kirtsaeng alleging copyright infringement; Kirtsaeng claimed his actions as legal under the first sale doctrine. A district court jury imposed damages of $75,000 per infringed work, and the 2nd Circuit affirmed the decision on appeal.
The first sale doctrine, up until this point, allowed for individuals such as Kirtsaeng to buy and sell goods without getting permission from the original copyright holder of the products, essentially allowing secondary markets for a variety of consumer goods to exist. At issue before the Supreme Court is how Section 602(a)(1) of the Copyright Act, which bars 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 of a work that was made and legally acquired abroad and then imported into the United States.
The Courts decision in Kirtsaeng will not just have ramifications in the textbook world, but will have an enormous impact on a variety of types of goods such as consumer electronics, furniture, music, etc. If the Court affirms the lower courts decisions, it is easy to see a complex web of problems developing. For starters, as Slate’s John Villasoner points out:
[I]t’s not always easy to know where something is manufactured. Taylor Swift and her record label are American, but suppose her CDs are “manufactured” in Asia. Does that mean you can’t lend the CD after all? What about items that we know are manufactured overseas? Are we committing willful infringement if we donate a Chinese-manufactured laptop computer to a neighborhood school?
The fundamental parameters of secondary markets for a variety of goods are in the hands of the Supreme Court. The decision handed down in the coming months will have an enormous impact on consumers throughout the world. It is foreseeable that in the not so distant future, consumers will have to ask themselves whether that book they picked up while traveling Europe is really theirs after all.