First Sale Doctrine as an Endangered Species

While the news that the Supreme Court granted a writ of certiorari for the case Kirtsaeng v. John Wiley & Sons, Inc. goes back to April, it was only last week that Publishers Weekly reported that the Library Copyright Alliance had filed an amicus brief for the case. If you hadn’t heard of this case before, now is the time to learn about it and follow it closely. To say that the stakes in this case are high is an extreme understatement as it could impact hundreds of millions of items in library collections around the United States.

The short version of the case is that Mr. Kirtsaeng purchased and imported textbooks from his native Thailand that were content identical but made with inferior colors and printing stock (in other words, cheaper versions of the same textbook printed in the United States). He then sold these textbooks on sites like eBay and pocketed the profits. John Wiley & Sons got wind of this and filed a suit to stop him doing so under various copyright based legal assertions. Mr. Kirtsaeng argued that his sales were covered under the First Sale Doctrine; since he purchased the book, he had the right to re-sell it. The district court and the Second Circuit Court of Appeals disagreed and held that the language of the First Sale Doctrine did not apply to foreign created works; as such, Mr. Kirtsaeng did not have the right to resell the book. In reaching the Supreme Court, the question before the Justices is this:

The question presented is how these provisions apply to a copy that was made and legally acquired abroad and then imported into the United States. Can such a foreign-made product never be resold within the United States without the copyright owner’s permission, as the Second Circuit held in this case? Can such a foreign-made product sometimes be resold within the United States without permission, but only after the owner approves an earlier sale in this country, as the Ninth Circuit held in Costco? Or can such a product always be resold without permission within the United States, so long as the copyright owner authorized the first sale abroad, as the Third Circuit has indicated?

Scary stuff indeed.

As libraries rely on the First Sale Doctrine to lend materials, this could mean that all foreign produced works (including those legally created by United States copyright holders and then imported) would not legally lendable. This would surpass the clusterfuck that was the wording and implementation of the Consumer Product Safety Improvement Act that made libraries quarantine their children’s collections because of lead content concerns. This is much bigger and far more reaching as it hits every kind of library in the United States. Every collection would need to be scrutinized to determine if the materials were of foreign manufacturing origin; the results could be catastrophic if not completely fatal to the lending ability of libraries.

There is light at the end of the tunnel here, but whether it is the outside sky or a train coming through has yet to be seen. The oral arguments will outline which Justices have which concerns and which way they might be leaning, but that is several months away. It will be interesting to hear how the arguments are framed and presented.

In imagining the worst, I’m wondering whether lending would continue as an act of civil disobedience (as suing libraries isn’t the best PR move ever), insist only on books printed in the United States (leaving distributors in the lurch in dealing with publishers), and/or taking the money we would have spent on the collection and investing it in other things like collaborative spaces, comfy accommodations, or updating and upgrading our technology portfolios. In any event, it’s certainly something to watch and follow closely.

If your library couldn’t lend out foreign works, how would that effect you?