Supreme Court reaffirms resale of copyright works

Justices say a prohibition on the resale of products made overseas would cause multiple problems

U.S. residents have the right to resell software and other products protected by copyright even when they are manufactured overseas, the U.S. Supreme Court has ruled.

The Supreme Court, in a 6-3 opinion issued Tuesday, struck down a U.S. Court of Appeals for the Second Circuit ruling that could have outlawed the resale of large numbers of products made outside the U.S., including books, CDs, DVDs and software.

In the case, Kirtsaeng v. John Wiley & Sons, textbook maker Wiley argued that Supap Kirtsaeng did not have the right to import textbooks printed for the Thai market and sell them in the U.S. because copyright law allows resale only when products are "lawfully made." Lawfully made products are those made in the U.S., Wiley's lawyers argued.

Kirtsaeng, a Thai man, financed his U.S. college education by importing textbooks he could buy cheaper in Asia and selling them on eBay in the U.S.

Justice Stephen Breyer, writing for the majority, suggested Wiley was stretching to find a geographical requirement in the "lawfully made" language. Reading a geographical requirement into the language "bristles with linguistic difficulties," he wrote.

Requiring resellers to check the country of manufacturer of a wide range of products before selling them, and libraries to do the same before lending books, would be cumbersome, he wrote.

The ability to resell products protected by copyright is deeply embedded in the practices of ... booksellers, libraries, museums, and retailers," he wrote. "Museums, for example, are not in the habit of asking their foreign counterparts to check with the heirs of copyright owners before sending, e.g., a Picasso on tour."

Taking away the so-called first-sale doctrine would cause practical problems that are "too serious, too extensive, and too likely to come about for us to dismiss them as insignificant," Breyer added.

Justice Ruth Bader Ginsburg, writing for the minority, questioned the problems predicted by Breyer and Kirtsaeng's allies if the lower court decision stood.

"To justify a holding that shrinks to insignificance copyright protection against the unauthorized importation of foreign-made copies, the Court identifies several 'practical problems,'" she wrote. "The Court's parade of horribles, however, is largely imaginary."

The American Library Association and digital rights group Public Knowledge cheered the court's decision. The decision allows U.S. libraries to continue lending an estimated 200 million foreign-made books in their collections, the ALA said.

Public Knowledge, in a blog post, called the decision "a big win for the public interest, students, libraries, retailers, and consumers of all sorts who will be protected by this decision."

"We were almost in a situation where anyone that held a garage sale or loaned a book to a friend could be in violation of copyright law," Public Knowledge added.

Grant Gross covers technology and telecom policy in the U.S. government for The IDG News Service. Follow Grant on Twitter at GrantGross. Grant's e-mail address is grant_gross@idg.com.

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Tags Stephen BreyerU.S. Court of Appeals for the Second Circuite-commerceAmerican Library AssociationJohn Wiley & SonsSupap KirtsaenginternetU.S. Supreme CourtPublic Knowledgeintellectual propertycopyrightebaylegalRuth Bader Ginsburg

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