Kirtsaeng Overturned: A Win for Libraries

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Posted: 03/19/2013

March 19, 2013

The United States Supreme Court held today that buying books abroad and selling them in the United States is not a violation of copyright law. Instead, it is well within the rights of an individual under the first sale doctrine. The publisher, John Wiley & Sons, argued that Kirtsaeng’s buying of books abroad and selling them in the United States was an infringement of copyright law via Wiley’s supposed exclusive right to distribute their books and §602’s import prohibition. Kirtsaeng countered that because his books were “lawfully made” and acquired legitimately, §109(a)’s “first sale” doctrine permitted the importation and resale of items without Wiley’s further permission. Both the district court and the United States Court of Appeals for the Second Circuit rejected Kirtsaeng’s argument. However, the United States Supreme Court held today that the “first sale” doctrine applies to copies of a copyrighted work lawfully made abroad. Pp. 7–33. Thus, today’s ruling overturns the Second Circuit’s previous holding.

John Wiley basically was arguing that a geographical restriction should be placed on books that were deemed lawfully made, purchased and resold. The Court disagreed with such a geographical restriction.

The Court further reasoned that library associations, used-book dealers, technology companies, consumer-goods retailers, and museums point to various ways in which a geographical interpretation would fail to further basic constitutional copyright objectives, in particular “promoting the Progress of Science and useful Arts,” Art. I, §8, cl. 8. For example, a geographical interpretation of the first-sale doctrine would likely require libraries to obtain permission before circulating the many books in their collections that were printed overseas. Pp. 19-24.

Also, the “first sale” doctrine is also deeply embedded in the practices of booksellers, libraries, museums, and retailers, who have long relied on its protection. And the fact that harm has proved limited so far may simply reflect the reluctance of copyright holders to assert geographically based resale rights. Thus, the practical problems described by petitioner and his amici are too serious, extensive, and likely to come about to be dismissed as insignificant—particularly in light of the ever-growing importance of foreign trade to America. Pp. 19–24. These practical problems consist on the heavy burdens such a geographical restriction would place on libraries, museums, retailers…

Today’s holding is great news for libraries, booksellers, museums, retailers, and other entities that purchase and resell items. This ruling is really good for consumers as well that rely on their legal right to purchase books, CDs, and other items “legally made” and give them as gifts to others. There is no telling how far reaching a contrary ruling could have gone in preventing one’s rights to do what they want with legally obtained property.

Submitted by - Kristyn H