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Important Supreme Court Case: Kirtsaeng v. John Wiley & Sons

   October 10th, 2012

I like it when issues are so relevant to me that I couldn't miss them if I tried.

Early last week, I was coordinating with a speaker for the upcoming NELA conference, when he mentioned the Supreme Court Case of Kirtsaeng v. John Wiley & Sons, Inc.. It sounded vaguely familiar, but since I knew I could hear him talk about it next week, I didn't really pursue it.

A few days later, the same case showed up on BoingBoing, , nicely summarized:

Writing in MarketWatch, Jennifer Waters explains the implications of a Supreme Court case, Kirtsaeng v. John Wiley & Sons, which turns on the question of whether you have the right to re-sell things you buy out of the country, or whether the copyrights embodied by your phones, clothes, gadgets, books, music, DVDs, and other possessions mean that you can't sell your stuff without permission from the original manufacturer.

Following Wiley's theory, you don't really own most of your possessions. You share ownership in your goods with the companies that made the goods you "bought" from them, and they get a veto over your disposal of them, and can also demand a cut of the proceeds.

It seems like something this ridiculous-sounding couldn't possibly come to pass, but remember this is also the Court that said corporations are people, sometimes.

And more significantly, a major publisher is involved. Here's where things started:

Wiley & Sons, a U.S. based textbook publisher with foreign affiliates, originally filed suit in the Southern District Court of New York against a Thai individual studying in the United States who obtained cheaper foreign-made editions of Wiley textbooks, printed by Wiley Asia, that he then resold on eBay in the U.S. for a profit. The District Court held that the first sale doctrine applies only to works manufactured in the United States.

We've already kissed the First Sale Doctrine goodbye with ebooks, and now it looks like applying it to physical items is threatened too. It seems like this would mean, at the very least, libraries would need to check all our books for "Printed in the USA" before we could resell them at a booksale, or else we risk breaking the law. But taken to the ridiculous extreme, it also sounds like individuals would have difficulty reselling almost anything made overseas - cell phones, cars, clothes, DVDs, etc.

The FBI will have to create a new task force, which could be dubbed "The Garage Sale Police," to enforce this if it becomes new copyright law. And in my opinion, anything that sounds like a reality show has got to be a bad idea.

But seriously, this is definitely something to pay attention to. Read more on MarketWatch and the Harvard Journal of Law & Technology Digest.




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8 Responses to “Important Supreme Court Case: Kirtsaeng v. John Wiley & Sons”

  1. Ellie Says:

    This makes me think of Harry Potter, where in the Deathly Hallows, Bill and Harry talk about the differences between wizards’ and goblins’ views on property rights. Goblins feel as if the creator of something owns it forever and ever and whoever buys something from them is merely renting it and then when they die it should go back to the original creator. They see wizards keeping their goblin-made treasures after the death of the original purchaser as little more than theft. Wizards subscribe to the idea that once you purchase something, it belongs to the purchaser.

  2. Chris Says:

    If Kirtsaeng is upheld by the Supreme Court, I could predict a major move to send all printing to another country. The publishers could then demand a fee to permit a library to loan a book. The publisher we bought it from may be a US company but the book was printed and bound in another country.

    As the screams of outrage start, watch the authors see this as a method to get fees for lending out “their” books.

    Think of this as ta “kill the American printing industry” decision.

  3. Lori Says:

    “The District Court held that the first sale doctrine applies only to works manufactured in the United States.”

    I thought it applied to works SOLD in the U.S., not manufactured. That would make more sense.

    Love the goblin analogy:)

  4. Max Says:

    Its interesting I had only heard of this because of its impact on selling video games. Always nice to see another way that corporations are going to screw us.

  5. Julie Says:

    Oh I love a good Harry Potter reference!

  6. Rick Says:

    This is probably going to sound extremely daft of me, but — perhaps this is an issue of what is reasonable versus what is not reasonable. Read through the article you linked, which linked here:

    http://www.bloomberglaw.com/public/document/John_Wiley__Sons_v_Kirtsaeng_654_F3d_210_99_USPQ2d_1641_2d_Cir_20

    According to this, “Wiley’s counsel proceeded to ask Kirtsaeng a series of questions about his “net worth” in an attempt to impeach his previous statements. Specifically, he attempted to enter into evidence a record of Kirtsaeng’s PayPal revenues, showing $1.2 million in revenues, in contrast to Kirtsaeng’s previous testimony that he had earned only $900,000 in revenues”.

    Sounds like this person was basically making a business of reselling cheaper books by importing them – and while he did in all fairness do some checking on the ‘Net, it might have been better if he’d written to Wiley prior to engaging in this activity.

    What I mean by all of this is, a student selling his/her books acquired abroad for the purpose of studying with them, or a library getting rid of books acquired abroad during a sale, is quite a different story from a person (who happens to be a student) making hundreds of thousands of dollars by doing something that’s clearly written not to do on each book then claiming he’d made sure it was legal by checking around in forums.

    Once again – this probably sounds very naive, but could we expect publishers such as Wiley & Sons to be going after some of their most loyal customers (libraries) for doing something reasonable like sell old books (after presumably acquiring new ones)? Does this really fit into the same scenario as that of Kirtsaeng?

  7. Brian Herzog Says:

    @Rick: that is interesting, and I’m certainly no legal expert, but I’m still leery of this for a couple reasons. I think a lot will depend on how broadly or narrowly the Court might rule – if they say that anything manufactured overseas is subject to new rules, then regardless of whatever Wiley may intend I can see this taking on a life of its own as other businesses seek to exploit it to generate revenue.

    Also though, I think the whole “is he a student” this is kind of a red herring. This guy bought these books, and I think that entitles him to do whatever he wants with them. I don’t think Wiley can put a sticker on them saying “you can’t do X” and have it stick in any legal sense – I mean, I don’t think companies can force people to enter into a contract that supersedes federal law.

    Also too, if you consider this guy a “small business,” then this looks like a case of a big business trying to use the federal government to shut down competition. That, again once someone exploits it, could have much wider implications than just this one situation.

    Whether any of this will ever go anywhere, I don’t know – I’m just alarmed at the precedent it might set, and the doors it could potentially open.

  8. Swiss Army Librarian » #nelaconf12 Notes and Insights :: Brian Herzog Says:

    [...] on Kirtsaeng v. John Wiley & Sons, Inc. Last week I posted about this case now before the Supreme Court, and mentioned that Alan Wexelblat of Copyfight would be speaking at NELA. This was probably the [...]