November 2, 2012

Supreme Court Hears Case on Imported Textbooks

The U.S. Supreme Court heard oral arguments on Monday in a pivotal copyright-infringement case over whether textbooks from foreign markets can be imported to the U.S. and resold without the publisher’s permission. The Court’s decision in the case, Kirtsaeng v. John Wiley & Sons, may have major consequences for publishers, academic libraries, museums, and others who resell, lend, or display copyrighted material made and purchased outside the United States.

The case arose when Supap Kirtsaeng, a U.S. college student originally from Thailand, re-sold textbooks that his friends and relatives shipped to him from abroad. In response, publisher John Wiley & Sons sued him for copyright infringement. Mr. Kirtsaeng’s defense centers on the first-sale doctrine, which permits the buyer of a copyrighted work to lend or resell it without permission. However, the Copyright Act states that the first-sale doctrine applies only to goods “lawfully made under this title,” which may or may not include foreign products. In August 2011, the U.S. Court of Appeals for the 2nd Circuit upheld a lower court’s decision that only domestic works are protected under the first-sale rule, nevertheless the Supreme Court may have a different ruling.

As the NY Times reported, much of Monday’s discussion involved what lawyers call the “parade of horribles”—the worst-case scenarios that could result from a ruling in favor of the publishers. For example, libraries could theoretically be prohibited from distributing foreign-made books, owners of foreign cars could be barred from re-selling them as used, and more. The publisher’s attorney stated that there might be provisions allowing for some gifts and re-sales, such as the “fair use” doctrine which lets copyrighted works be reproduced if they are to be used for research, critique, or similar purposes. However, Chief Justice John G. Roberts Jr. countered, “It seems unlikely to me that, if your position is right, a court would say, it’s a fair use to resell the Toyota, it’s a fair use to display the Picasso.”

Justice Elena Kagan, considered by many to be the crucial swing vote in the case, actively questioned both sides, but did not reveal her leanings. Otherwise, the justices appear divided, according to The Chronicle. A ruling in the case is expected by the end of the court’s term, in June.