Supreme Court Rules on Bookselling Suit

By Jason Boog Comment

The U.S. Supreme Court has ruled in a 6-3 opinion that ” first sale doctrine” applies to books purchased overseas.

The court decided that Supap Kirtsaeng did not violate copyright when he purchased textbooks overseas to sell to friends and families in the United States. Textbook publisher Wiley had sued Kirtsaeng for reselling these books.

You can read the complete Supreme Court decision at this PDF link. First sale doctrine applies to the sale of copyrighted goods, letting the buyer’s copy be “resold or otherwise redistributed without the copyright owner’s authorization.”

The American Library Association cheered the decision in a statement:

It vindicates the foundational principle of the first sale doctrine—if you bought it, you own it. All who believe in that principle, and the certainty it provides to libraries and many other parts of our culture and economy, should join us in applauding the Court for correcting the legal ambiguity that led to this case in the first place. It is especially gratifying that Justice Breyer’s majority opinion focused on the considerable harm that the Second Circuit’s opinion would have caused libraries.

The Software & Information Industry Association (SIIA) general counsel Keith Kupferschmid attacked the decision in a statement filled with grim predictions:

The ruling for Kirtsaeng will send a tremor through the publishing industries, harming both U.S. businesses and consumers around the world. Today’s decision will create a strong disincentive for publishers to market different versions and sell copies at different prices in different regions. The practical result may very well be that consumers and students abroad will see dramatic price increases or entirely lose their access to valuable U.S. resources created specifically for them … American publishers will face direct harm, because our markets will be open to a flood of copyrighted material that was intended for purchase overseas. By exploiting pricing models that are meant for students in undeveloped nations, importers both deny those students a full education, and threaten American publishers’ ability to do business abroad.

While writing the court’s opinion, justice Stephen Breyer discussed the handling of a hypothetical copy of Herzog by Saul Bellow. The justice also cited some historical arguments presented by used book dealers defending first sale doctrine.

Used-book dealers tell us that, from the time when Benjamin Franklin and Thomas Jefferson built commercial and personal libraries of foreign books, American readers have bought used books published and printed abroad … The dealers say that they have “operat[ed] . . . for centuries” under the assumption that the “first sale” doctrine applies … But under a geographical interpretation a contemporary tourist who buys, say, at Shakespeare and Co. (in Paris), a dozen copies of a foreign book for American friends might find that she had violated the copyright law. The used­ book dealers cannot easily predict what the foreign copy­right holder may think about a reader’s effort to sell a used copy of a novel. And they believe that a geographical interpretation will injure a large portion of the used-book business.

Editor’s Note: This post was updated as the story evolved.