• November 28, 2014

In Win for Libraries Over Publishers, Supreme Court Upholds Reselling of Foreign Books

If you're the legal owner of a copy of a book or other work copyrighted under U.S. law, the Supreme Court says you have the right to resell or give it away, even if it was made overseas.

In a much-anticipated ruling in the case of Kirtsaeng v. John Wiley & Sons, the court ruled, 6 to 3, on Tuesday that the so-called first-sale doctrine protects the buyers of copyrighted works even if those works were legally manufactured outside the United States. Library groups celebrated the decision as "a total victory" for library users and others who share or resell copyrighted products. But publishers said the ruling would have "significant ramifications" for creators of copyrighted works and would discourage global trade.

The case pitted Supap Kirtsaeng, a Thai national, against John Wiley, a major textbook publisher. Wiley sued Mr. Kirtsaeng for importing and reselling foreign-made copies of its textbooks when he was a graduate student in the United States. The books cost less abroad than in the United States, enabling him to turn a profit. The U.S. Court of Appeals for the Second Circuit upheld a lower court's judgment in favor of Wiley. Mr. Kirtsaeng then appealed to the Supreme Court, which heard arguments in the case last fall.

Writing for the majority in the case, No. 11-697, Justice Stephen G. Breyer laid out the essential question as the court saw it: Can someone who buys a copy of a protected work "bring that copy into the United States (and sell it or give it away) without obtaining permission to do so from the copyright owner?" Justice Bryer asked. "Can, for example, someone who purchases, say at a used-book store, a book printed abroad subsequently resell it without the copyright owner's permission?"

In the majority's view, the answer is yes. "We hold that the 'first sale' doctrine applies to copies of a copyrighted work lawfully made abroad," Justice Breyer wrote.

The majority appeared to take seriously the arguments, made by libraries and others, that limiting the first-sale doctrine by geography could cause serious harm to what they do. Justice Breyer noted "the practices of booksellers, libraries, museums, and retailers," who have long relied on first-sale protections. "The fact that harm has proved limited so far may simply reflect the reluctance of copyright holders to assert geographically based resale rights," he wrote.

The "practical problems" laid out by Mr. Kirtsaeng and the groups that filed supporting briefs on his behalf "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," the justice concluded.

'A Total Victory'

Justice Elena Kagan wrote a concurring opinion in which Justice Samuel A. Alito joined. The dissenting opinion was written by Justice Ruth Bader Ginsburg, joined by Justice Anthony M. Kennedy and (with some qualifications) by Justice Antonin Scalia.

The Library Copyright Alliance, which includes the American Library Association and the Association of College and Research Libraries, filed a friend-of-the-court brief supporting Mr. Kirtsaeng and his first-sale defense. They declared Tuesday's ruling "a total victory for libraries and our users." In a written statement, they said the decision "vindicates the foundational principle of the first-sale doctrine—if you bought it, you own it."

The Association of American Publishers described itself as "disappointed" by the ruling, which "ignores broader issues critical to America's ability to compete in the global marketplace," the group said in a written statement. "To quote Justice Ginsburg's dissenting opinion, the divided ruling is a 'bold departure' from Congress's intention 'to protect copyright owners against the unauthorized importation of low-priced, foreign-made copies of their copyrighted works' that is made 'more stunning' by its conflict with current U.S. trade policy," the group said.

The publishers' association added that it's likely that Congress will consider the issues raised by the Supreme Court's ruling. The Library Copyright Alliance said it was ready to carry on the fight on Capitol Hill as well.

"Wiley and others who sought a right of perpetual control over these materials may turn to Congress to roll back the court's wise decision," the alliance said. "Libraries and our allies remain vigilant in defense of first sale and all of the rights that make it possible to serve our communities."

The chief executive officer of Wiley, the publisher that pressed the lawsuit against Mr. Kirtsaeng, did not indicate what it might do next. "We are disappointed that the U.S. Supreme Court has decided in favor of Supap Kirtsaeng and overturned the Second Circuit's ruling," Stephen M. Smith, Wiley's chief executive officer, said in a brief written statement. "It is a loss for the U.S. economy, and students and authors in the U.S. and around the world."

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