College Textbooks

Kirtsaeng v. Wiley is being described as the most important copyright case of the decade. The focus of the case is Supap Kirtsaeng, a Thailand native who came to the US to attend college. In 2007, he began selling textbooks shipped to him by family in Thailand on eBay to help finance his education. These textbooks were sold at a fraction of the price of the ones being sold in the US. From 2007-2008, he made somewhere between $900,000 and $1.2 million and generated $100,000 profit from the business. In 2008, the publishing giant Wiley took notice and sued Kirtsaeng. He lost and was ordered to pay damages for infringing copyrights on eight Wiley books, totaling $600,000. Kirtsaeng’s appeals have now made it to the Supreme Court.

At first glance, the thought of someone being sued for copyright infringement for selling imported textbooks seems strange. The face of modern copyright infringement has become internet piracy, so it’s odd to see someone being sued for copyright infringement for selling legally bought textbooks. Well, that’s where things get complicated, legally speaking.

Normally, the distribution of secondhand goods is protected by the right of “first sale”, which states the owner of a product may do what they like with it because once it’s sold, the copyright owner’s rights to that particular product are “exhausted”. This is what allows individuals to sell their used possessions at yard sales or on eBay without being sued by various companies for copyright infringement. And that’s why the rule of first sale exists because when you buy something, you feel it’s yours to do with as you please (to an extent).

However, after copyright owners were defeated in previous importation cases, they discovered a loophole. Seeing as the imported textbooks were printed overseas, they claim the rule of first sale does not apply because they weren’t produced under US copyright law. Slate’s John Villasenor summed up the uneasiness of this situation perfectly last week: “To put it mildly, this holding is problematic. To start with, it’s not always easy to know where something is manufactured. Taylor Swift and her record label are American, but suppose her CDs are ‘manufactured’ in Asia. Does that mean you can’t lend the CD after all? What about items that we know are manufactured overseas? Are we committing willful infringement if we donate a Chinese-manufactured laptop computer to a neighborhood school?”

Of course, it’s highly unlikely for you to find yourself in legal trouble with Taylor Swift for letting your best friend borrow your copy of her latest album (mostly because nobody buys CDs anymore). But the issue at hand, according to the copyright owners, is about individuals like Kirtsaeng building businesses around the importation of foreign goods that undercut the goods already being sold in the US.

ArsTechnica’s Joe Mullin caught this in an amicus brief from lawyers representing the MPAA and RIAA in his exposé on the case: “The genuine threat at issue is the prospect of systematic, unauthorized importation on a mass scale of copies of movies, sound recordings, or other protected works that could undercut the market for copies intended for sale in the United States or constrain copyright holders’ ability to control the timing and terms of entry into different markets.”

So pro-Kirtsaeng supporters rally behind the larger threat to “first sale”, while the copyright holders are saying they’re simply looking out for their bottom lines. Both sides have made their points and now it’s up to the Supreme Court to make a ruling.

What are your thoughts on this case? Let us know in the comments.

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