Surpeme Court to Hear Critical Copyright Case on “First Use” Doctrine

The oral argument this week before the Supreme Court in John Wiley & Sons, Inc. v. Supap Kirtsaeng case will be very interesting.  At stake may be nothing less than the rights of Americans to re-sell goods manufactured abroad.   For years, the “first sale doctrine” has allowed copyright holders to profit only from the first sale of their goods. After that, the purchaser can do what he or she wants with it.

The notion that an enterprising college student could be driven bankrupt by his efforts to pay for school by re-importing textbooks sold abroad is sad.  This is particularly so when the legality or illegality of his doing so depends on rather arcane and confusing language in the Copyright Act.  At a minimum, the jury in his trial should have been instructed about the availability of the “first use” defense.  But they were not.

Supreme Court decisions, particularly those based on statutory construction, are not popularity contests.  But the loser in this case is likely to appeal for legislative reform.  That would pit the more popular pro-libertarian sentiment in favor of the first sale doctrine against a very powerful and well-funded lobby of publishers.  Accordingly, the result in the Supreme Court is likely not the end of the story.

In any event, here’s to hoping the Kirstaeng prevails in the Supreme Court.

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© Copyright , Jeffrey Gross