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?

Digital and First Sale Doctrine Thoughts

LISNews had this interesting article on the death of the First Sale Doctrine in the digital age. In rebuking ownership and proclaiming that the software, music, movies, books, and so forth are licensed, leased, or rented, people are denied the right to transfer (and for the specific purposes of this post, lend or give) a copyrighted work from themselves to another. While I will concede that my support for the establishment of First Sale Doctrine rights for digital property has major problems when it comes to how to transfer ownership, I can’t help but wonder if the elimination of ownership (or even the ability to lend or give) is a good thing or a bad thing.

My first reaction to the article was the immediate difference between purchasing and (in effect) renting. In disallowing ownership and some of the stakeholdership associated with it, does it transform our notions of pop culture into a transitory or disposable one? (Considering how quickly music groups and movies fly through our lives, perhaps this is a late discovery.) As much as companies might feel that lending is a lost sale, is this better than having people with no actual investment in a media or medium and treating it as such? Without ownership ties, does this effect how easily or readily people might give up on a band, book, or movie? I can’t help but feel like it does.

Following this, all I could imagine is what the management of digital rights must cost the industries involved and what it would be in perpetuity. As the number of works increases, it will involve managing those copyrights and their associated trademarks and brands. Considering the length of copyright protecting, this means that someone will have to be placed into the role of the ever vigilant observer to ensure these rights are protected till they expire. (Perhaps there can be some sort of pseudo-religious order founded on the basis of protecting copyrights since it’s going to take several generations of keepers to safeguards. Like the Knights Templar of Copyright or something.) How much of an actual cost will become? Is this a better allocation of resources compared to establishing some digital rights?

Given that companies have gone after file sharers and come up with a fistful of bad press and a negative cost: benefit ratio, there has to be a sensible middle ground.

What are your thoughts? Can First Sale exist in the digital age?

What If Gutenburg Had Licensed The Bible?

I believe there are some similarities between the emergence of the eBook and the printing press. Both are transformative technologies whose ability to disseminate information to larger audiences marked a milestone in literacy and information access. While expensive and cumbersome in their own ways when they first came out, each innovation cycle has reduced the cost and has increased material availability through a variety of means. Gutenberg’s press would ultimately revolutionize the printed word by mechanizing the process; eBooks will revolutionize the publishing world by removing the remaining barriers to written content.

The difference that is emerging is how they are treated when it comes to rights of ownership. The first-sale doctrine does not apply to eBooks; one cannot re-sell or lend a title that they legally purchased. The limitations of eBook formats and ereaders themselves mean that some titles are not universally accessible. Furthermore, the prevalent winds of eBooks is leaning towards a licensing format in which control over one’s personal library has been ceded to another, be it corporation, author, or middle man content provider.

This is not an acceptable situation.

This is a correctable situation but it will require the combined efforts of all parties. It is an effort that is bigger than the librarian profession and the publishing field for it encompasses the entire spectrum of literature, from the author to the end user and all the people and institutions between. It will not be a sprint but a marathon where the ideal end result is a model that allows all to thrive. It will not be clean nor easy, but it is a process that has to happen. Not simply for ourselves, but for the future of literature and information access.

That is why the eBook User’s Bill of Rights is so important. And this is why we must act. For if you thought that the question in the title of this post was absurd, it could be a cruel reality in the new eBook world unless action is taken now. It is not something that librarians can pass up.