October 30, 2012

Supreme Court hears landmark copyright case despite Frankenstorm

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Even a perfect storm won’t stop the Supreme Court from making a decision that could profoundly change our understanding of copyright law and the First Sale doctrine.

As MobyLives reported earlier this year, the case is between Supap Kirtsaeng, a student who resold foreign-bought text books and the publisher John Wiley & Sons.

The case is currently being heard by the Supreme Court, which stayed open despite the inclement weather in DC, and has wide ramifications for a motley collection of interest groups.

As Roger Parloff reports at Fortune, the case has already brought together a group that might not otherwise have shared similar interests.

“[P]ublishers, movie studios, digital rights groups, and free culture advocates — but also from merchants like Costco and eBay, luxury purveyors such as Omega, thrift-shop Goodwill Industries, as well as cultural icons including the Museum of Modern Art.”

As discussed previously, the case turns on the justices’ interpretation of two sections of copyright law. Firstly, Section 602(a)(1), which reads that copyright holders have a wide range of powers to prevent unauthorized businesses from importing their products. The second is 17 U.S.C. § 109, — the first sale doctrine — which dictates that once a copyright holder’s product is bought, the buyer has the right to to re-sell it or give it away.

The question here is, which of these provisions trumps the other.

Does Kirtsaeng have the right to import text books he legally bought from Wiley’s Asian counterpart, and resell them in the United States?

Or will Wiley prevail, signifying that the first sale doctrine only applies to products made in the United States?

The judges seem to understanding the scope of the case. According to the Wall Street Journal,

“Justice Stephen Breyer raised the example of used Toyota cars, noting that such vehicles can include copyrighted sound systems and GPS devices that were manufactured abroad. He asked: Does that mean consumers violate copyright law when they resell their cars?

Justice Breyer also wondered whether libraries could be liable for lending foreign-made books or art museums for displaying foreign works.”

Not to mention, all overseas travelers could theoretically have a problem with souvenirs bought in other countries.

Both Parloff and Brent Kendall in the WSJ note that the case will mostly likely be a close call. The justices split 4-4 last time they were asked to make a similar decision between watchmaker Omega and Costco. No such tie is possible this time around, as Justice Kagan has not recused herself.

When the east coast emerges from the storm bunkers, publishing could be a very different landscape. From the Penguin-Random House merger to the revisiting of a major tenent of copyright law, big changes are on the way.

 

 

 

Ariel Bogle is a publicist at Melville House.

MobyLives