You buy it, you own it

The Supreme Court rules it's legal to resell here a copyrighted item from abroad

Supap Kirtsaeng came to the United States from Thailand in 1997 to study at Cornell University and, later, earned his PhD in math at University of Southern California. While here, Kirtsaeng had relatives and friends purchase copies of English-language textbooks, offered at lower prices in Thailand, and send them to him. He resold those books, at a profit, on sites like eBay, under the name Bluechristine99. The publisher of those books, John Wiley & Sons, Inc., sued him for it and won. But in a decision handed down Tuesday morning, the Supreme Court ruled that, in fact, Kirtsaeng’s actions were legal. 

The 6-to-3 decision in Kirtsaeng v. John Wiley & Sons, Inc., holds that “first sale doctrine”—the bit of copyright law that enables the resale of used books, games, movies, and other copyrighted works—applies to legally made works manufactured outside the US.

If Kirtsaeng had acquired the books in the United States, his actions certainly would have been legal. Copyright law gives copyright owners the exclusive rights to distribute their products—with the condition that, once a particular copy has been sold, the buyer can dispose of it as she wishes, be that trashing it, lending it out, or reselling it. This condition is known as first sale doctrine, and owners of copyrights, like John Wiley & Sons, had taken the position that it only applies to works made in the United States. In the Asian copy of one of its textbooks, for instance, Wiley printed a noticed that “This book is authorized for sale in Europe, Asia, Africa, and the Middle East only and may be not exported out of these territories. Ex­portation from or importation of this book to another region without the Publisher’s authorization is illegal and is a violation of the Publisher’s rights.”

Lower courts agreed with that interpretation of the law. The district court that first heard the case found in favor of Wiley and assessed damages totaling $600,000. The Second Circuit appeal court upheld that decision. But the Supreme Court found that US copyright law does not impose a geographical limitation on first sale doctrine.

In his majority opinion, Justice Stephen Breyer noted that “book­sellers, libraries, museums, and retailers” have relied in the past on the protection of first sale doctrine to conduct their business. Organizations representing these groups had filed amici briefs with the court in support of Kirtsaeng, and during oral arguments, Breyer had been interested in hypothetical situations in which geographically limited first sale doctrine would trip up common practices—used car sales, museums displaying works of art made abroad, or libraries circulating books printed by foreign publishers. 

“We believe that the practical problems that peti­tioner and his amici have described are too serious, too extensive, and too likely to come about for us to dismiss them as insignificant—particularly in light of the ever­ growing importance of foreign trade to America,” Breyer wrote.

But Wiley and its allies argued that if the problems that these institutions imagined were a real danger, they would have arisen already. Wiley also argued that, without a geographical limitation to the first sale doctrine, it would be difficult for copyright owners to cater specifically to foreign or to domestic markets. The court agreed: “We concede that is so,” Breyer wrote. “A publisher may find it more difficult to charge different prices for the same book in different geographic markets. But we do not see how these facts help Wiley, for we can find no basic principle of copyright law that suggests that publishers are especially entitled to such rights.” 

But in the dissent, Justice Ruth Bader Ginsburg wrote that Congress had intended exactly that right for copyright owners and that the court had chosen “an interpretation of the Copyright Act at odds with Congress’ aim to protect copyright owners against the unauthorized importation of low-priced, foreign­ made copies of their copyrighted works.” 

Disclosure: CJR has received funding from the Motion Picture Association of America (MPAA) to cover intellectual-property issues, but the organization has no influence on the content.

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Sarah Laskow is a writer and editor in New York City. Her work has appeared in print and online in Grist, Good, The American Prospect, Salon, The New Republic, and other publications. Tags: , ,