Supreme Court says copyright law does not protect publishers in discount re-sales

The Supreme Court has ruled that textbooks and other goods made and sold abroad can be re-sold online and in discount stores without violating U.S. copyright law. In a 6-3 opinion, the court overturned a copyright infringement award to publisher John Wiley & Sons against Thai graduate student Supap Kirtsaeng, who used eBay to resell copies of the publisher’s copyrighted books that his relatives first bought in Asia at cut-price rates.  

Kirtsaeng sold $900,000 worth of books published abroad by Wiley and others, and made about $100,000 in profit. The international editions of the textbooks were essentially the same as the more costly American editions. A jury in New York awarded Wiley $600,000 after deciding Kirtsaeng sold copies of eight Wiley textbooks without permission.

The District Court had held that Kirtsaeng could not assert the “first sale” defence because that doctrine does not apply to “foreign-manufactured goods” (even if made abroad with the copyright owner’s permission) and on appeal, a split panel of the Second Circuit agreed with the District Court. The Supreme Court has now said that the "first sale doctrine" applies to copies of a copyrighted work lawfully made abroad.

Enough from me - there are two excellent blogs on the IPKat giving more detail on the judgment and comment - the first by Eleonora Rosati here http://ipkitten.blogspot.co.uk/2013/03/breaking-news-us-supreme-court-decides.html and a guest blog by Miri Frankel here http://ipkitten.blogspot.co.uk/2013/03/licensing-of-digital-copy-does-first.html

Comment from the Washington Post here

And there is now an update by Eleonora Rosati on the IPKat at   http://ipkitten.blogspot.co.uk/2013/03/a-kats-perspective-on-kirtsaeng-why-is.html

And its worth comparing this decision with 2010 case of Costco Wholesale Corp v Omega SA where the Ninth Circuit held that the first sale rule in the US copyright statute did not apply to foreign sales as a matter of law, since that statute lacked extraterritorial application. The Supreme court split 4-4 on appeal - perhaps showing just how difficult this whole area is. 

http://www.supremecourt.gov/opinions/12pdf/11-697_d1o2.pdf

Kirtsaeng v.  John Wiley & Sons   No 11-697 (Decided March 19, 2013)