Who can resell items copyrighted outside the US?

Does one really own what one buys? It sounds like a silly question, but increasingly in the global economy, this is becoming a serious thought for pondering. The digital age has brought the idea that consumers purchase use rights, rather than actually purchasing software, digital music, or e-books. Yet for over one hundred years, U. S. consumers have lived under The First Sale Doctrine of 1908 which allows “the purchaser to sell or give away a particular lawfully made copy of the copyrighted work without permission once it has been obtained. This does not infringe the copyright owner’s exclusive distribution rights” (USlegal.com). However, a case that was heard by the U. S. Supreme Court last Monday may forever change the way items copyrighted outside the U. S. are sold inside the U. S. on the second hand market. The ruling in this case could affect the art and antiques market as well as the second-hand book market – not to mention thrift stores and yard sales. Depending upon the way the Supreme Court rules, it could become illegal to sell or donate copyrighted goods that were made outside the U. S. without paying a fee to the original copyright holder.

The case at hand – Kirtsaeng v. John Wiley and Sons, Inc. – involves a U. S. textbook publishing company and a Thai doctoral student attending school in the U. S. The student’s family purchased legal copies of textbooks in Thailand and then Kirtsaeng resold them at a significant profit in the U. S. Wiley and Sons sued him for copyright infringement and won in the lower courts. As Chris Meadows points out in his October 30 article on the subject, there could be fallout no matter how the Supreme Court rules. A decision in favor of the publisher would encourage offshore printing of all manuscripts in order to get around U. S. copyright law, which would increase the loss of U. S. jobs. On the other hand, a decision favoring the student could mean huge profit losses for U. S. publishers because anyone could legally import and distribute foreign made books (Teleread.com). Publishers sell the same books in different areas at different prices based on the local cost of living. Is it wishful thinking to hope that the U. S. Supreme Court can rule in a way that both protects U. S. jobs and the right of citizens to resell copyrighted property that they have purchased?

Here’s a bit of cautiously good news for those in the second-hand market watching this case with concern; the justices may not have been convinced by the publisher’s argument. Writing an Argument Recap for the SCOTUSblog.com on October 31, Robert Mann states “But one thing is certainly clear: the publishers did not win over any new votes with the argument today, and the government’s concession that it could not accept the publisher’s position well might have sealed their defeat.”It could be weeks or months before the Supreme Court opinion is released. Publishers and those in the second-hand market will be waiting with bated breath to learn whether U. S. copyright protection or the rights of citizens to resell their possessions is weakened.

Sources for Further Reading:

Ronald Mann, Argument preview: Court tries again on copyright importation problem, SCOTUSblog (Oct. 18, 2012, 10:41 AM), http://www.scotusblog.com/2012/10/argument-preview-court-tries-again-on-copyright-importation-problem/

Ronald Mann, Argument recap: Justices skeptical of publisher’s position in gray-market copyright case, SCOTUSblog (Oct. 31, 2012, 11:04 AM), http://www.scotusblog.com/2012/10/argument-recap-justices-skeptical-of-publishers-position-in-gray-market-copyright-case/

Chris Meadows, Supreme Court First Sale Doctrine case could give boost to resale-proof digital media sales,TeleRead (Oct 30, 2012, 12: 00 PM), http:// http://www.teleread.com/copy-right/supreme-court-first-sale-doctrine-case-could-give-boost-to-resale-proof-digital-media-sales/

Rachel Glenn is part owner of Rachel’s Attic Antiques and Collectibles in Dandridge, Tennessee and has been dealing in antiques and collectibles for eleven years and selling online for eight years.