Wily Reseller of Protected Works Has Supreme Court Reviewing Copyright Law

 (Photo credit: The Library of Congress)

The U.S. Supreme Court recently heard arguments in Kirtsaeng v. John Wiley & Sons, Inc. (Docket No. 11-697), a copyright infringement case concerning whether a legal, foreign-made copy of a protected work purchased abroad may be resold in the U.S. without the copyright holder's permission.

The High Court is expected to decide the case early next year, according to a report in the Pittsburgh Tribune Review. Resourceful USC Ph.D.candidate Supap Kirtsaeng urged family members in Thailand to send textbooks to him in the U.S. where he resold them for $900,000 on eBay and netted a considerable profit. Not so fast, said textbook publisher John Wiley & Sons, Inc., holder of the copyright on eight of the texts printed in Asia, which sued under 17 U.S.C. sec. 602(a)(1) of the Copyright Act, which bars importing a copyright work "without the authority of the owner." In response, Kirtsaeng's attorneys argue that sec. 109(a) of the Act enables the owner of a copy "lawfully made under this title" to sell or otherwise rid himself of the copy without the copyright holder's okey dokey.

The trial court was unpersuaded by Kirtsaeng's claim, holding that sec. 109(a) didn't cover products manufactured abroad, and awarded the publisher $600,000, but an appellate court panel was divided, though a majority backed the trial judge. The case came before the High Court after the U.S. Court of Appeals for the Second Circuit denied Kirtsaeng's motion for a rehearing.

The High Court's decision in the case, which implicates the century-old first-sale doctrine that enables a copyright holder only to benefit from the initial sale of his or her work, has ramifications for booksellers, online service providers, auctioneers, museums and libraries, according to the Tribune Review article.