Ed's Blog

Yesterday, in one of the few government buildings open for business during Hurricane Sandy, the Supreme Court heard an important case, Kirtsaeng v. John Wiley & Sons, Inc, concerning whether publishers can restrict owners of books from reselling their used legally-purchased copies. A lower court, the Second Circuit,  had ruled that if the copies were made outside the U.S., longstanding rights under the "first sale doctrine" which allow a lawful owner of a particular copy of a copyrighted work to sell, give away, or lend that copy without getting permission from the copyright owner, would disappear. More from Adam Liptak in his New York Times story "Justices Weigh Case on Imported Textbooks."

U.S. PIRG joined a friend of the court brief along with Public Knowledge and the Electronic Frontier Foundation, in support of the petition by Supap Kirtsaeng, who got caught reselling books he'd legally bought, urging the court to hear the case. Here is the amicus filed by the same three groups, joined by the American Association of Law Libraries, and the Special Libraries Association, once the Court agreed to hear the case. All case materials, including filings for both sides, should be here at Scotus blog, once it is back up and running after the storm.

The court's decision will have massive implications not only for the price of textbooks but also for the very existence of important secondary (used product) markets like Amazon and eBay, which help keep the consumer goods marketplace competitive. As Public Knowledge attorney Jodie Griffin explained in a blog post last spring: 

"Publishers and manufacturers want to be able to control—or stop—sales of used goods, while consumers want to be able to dispose of their own physical property however they see fit. What the Court chooses to do could have enormous ramifications for consumers and businesses across the country that sell or lend copies of copyrighted goods, from books to toys to automobiles. [...] It’s no secret that publishers and other distributors wish secondary markets didn’t exist. [...] The Second Circuit’s reading encourages copyright owners to move their manufacturing jobs abroad to get indefinite control over all of the copies, and they can use this control to keep used copies from competing with new copies in the marketplace. This harms both consumers and retailers who participate in secondary markets: consumers will have to pay full retail price for a new copy or go without, and retailers will have to shut down operations that support secondary markets (like eBay’s auctions or Amazon.com’s marketplace for used goods)."

The Student PIRGs have long run an affordable textbooks campaign, supporting and promoting the growth of used textbook sales, textbook rental programs and the development of affordable digital alternatives, including Open Educational Resources (OER) or, free learning materials, which Student PIRGs Textbook Advocate Nicole Allen explains in a September 2012 webcast and also in a 2010 interview, both on the CreativeCommons.org website.

As PK's Jodie Griffin continues, it's easy to see a bad decision in this case extending to all used product sales, because even those without copyrights can be wrapped up in a copyrighted box:

"The impact of this decision is many times worse when you consider just how many products contain copyrighted works in today’s world. Toys for Tots may be illegal because toys can have copyright-protected designs and are often manufactured abroad. Owners of foreign-made cars will be unable to resell them because cars often contain computers that run copies of copyright-protected programs. Libraries will only be able to stock U.S.-made books on their shelves. Even producers of non-copyrighted goods can seize control by simply putting their good in foreign-made packaging with a copyright-protected design on it."

More (legal analysis) from Public Knowledge attorney Sherwin Siy, who attended the argument. And by the way, while this case before the Supreme Court considers the "first sale" doctrine, the U.S. Copyright Office punched a hole in the related "fair use" doctrine this week when it said that consumers have no right to circumvent copy-protection schemes to "rip" copies of their own legal DVDs to play them on their own tablets (which don't have a DVD player) or do other "space-shifting." As PK notes in this comment, even the record and movie moguls have said it is ok for consumers to "rip" (unprotected) CDs that they own for their iPods, so what is the Copyright Office thinking?

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