Supreme Court Hears Case Involving First Sale Doctrine

A long standing principle of copyright law is that a purchaser of a copyrighted work has the right to resell the item without obtaining permission from the copyright owner.  So, it is permissible, for example, to resell a college text book at a used book store. This legal principle, known as the ‘first sale doctrine’ is codified in Section 109(a) of the Copyright Act.  However, Section 602(a)(1) of the Copyright Act, prohibits the importation of a work without the authority of the copyright’s owner – and the interplay between these sections of the Copyright Act is the issue in the  case Kirtsaeng v. John Wiley & Sons Inc., to be decided by the U.S. Supreme Court.

The facts are as follows: Supap Kirsaeng came to the United States as a college student in 1997. While in this country Mr. Kirsaeng started a side business importing from his native Thailand college text books which he then re-sold on Web sites such as eBay. For various reasons, publishers charge much less for books in developing countries such as Thailand than in the United States.  When publisher Wiley & Sons discovered Mr. Kirsaeng’s business, they filed suit in federal court alleging a violation of Section 602(a)(1) of the Copyright Act, whereas the defendant argued that he had a right to resell the books based on the first sale doctrine. The federal district court held for Wiley & Sons, and on appeal the same result. Kirsaeng then appealed to the  U. S. Supreme Court.

If Kirsaeng prevails, publishers such as Wiley & Sons will be less likely to supply books at discounted prices in Third World countries – and this would be unfortunate.

However, as some commentators have noted, if the decision is upheld, the case could have certain unintended consequences. For example, would it be unlawful to import a copyrighted work, such as a book or magazine? Should such items  be seized at customs when a person enters the U.S.?

In my opinion, any “solution” should be narrowly tailored, but it appears the real problem lies with the Copyright law.  Congress should address the issue and amend the Copyright Act to allow publishers to go after re-sellers but make exceptions for  importation of copyrighted material which is done for personal use.

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