Supreme Court To Review If It's Legal To Resell A Book You Bought Abroad
from the first-sale-ftw dept
This isn’t a huge surprise, but it’s good to see that the Supreme Court has agreed to hear an important case regarding the first sale doctrine in copyright law, and whether or not it applies to products made outside the US. The specific case is one we’ve been covering, involving a guy, Sudap Kirtsaeng, who was (legally) buying textbooks that were sold in Asia, and then reselling them in the US. Under the first sale doctrine this should be perfectly legal. But… due to a twisted interpretation of copyright law, a 2nd Circuit appeals court went against Kirtsaeng, siding instead with publisher John Wiley. The issue is that the law says that first sale applies to copyrights to products made “under this” law. And the argument is that a product made outside the US may have copyright, but it isn’t made “under” US copyright law, and thus it doesn’t qualify.
As the dissenting judge in the 2nd Circuit noted, this interpretation doesn’t make any sense. The law doesn’t say anything about location, just about whether or not it was “manufactured lawfully” under the terms of the law. So, as the judge noted, as long as the product can be subject to US copyright law, then first sale should apply. This makes sense, and hopefully the Supreme Court agrees.
Of course, the Supreme Court has addressed this to some extent. The 9th Circuit had ruled similarly in the Omega/Costco case, and while the Supreme Court had taken the case, Justice Kagan recused herself from that case, because she had said that the first sale doctrine should not apply to foreign goods. And, in the end, the court split down the middle. So that means that, as a deciding vote, there’s a reasonable worry that Kagan will again say that the First Sale doctrine does not apply to foreign goods.
This is a dangerous and stupid interpretation of the law. It will cause tremendous trouble for anyone trying to sell pretty much any product made outside the US, because makers can claim that no one can resell such products without getting a new license. It will also drive more works to be made offshore, since (especially the copyright legacy players) will look to completely get rid of the first sale doctrine by “manufacturing” everything offshore. Hopefully, the Supreme Court recognizes the ridiculousness of such a result, but the result in the Omega case was not encouraging.