25 March, 2013

You bought it, you own it - The First Sale doctrine in the US Supreme Court

The American Supreme Court delivered its judgment a few days ago on a case which was long anticipated to possibly change the landscape where copyright exists, both in the US and globally. And it possibly might have done just that.

Kirtsaeng v John Wiley & Sons set an interesting precedent in the world of reselling a copyright work you have legally purchased, once you're done with the item. The case itself dealt with the resale of College textbooks by Mr. Kirtsaeng, which he brought over from Thailand, having been sold there for significantly less than in the US, making this the perfect opportunity for him to make a quick buck, while retaining the moral high-ground of helping his fellow students saving said buck (to use on nice things, I'm sure).

In previous years, had you done just what Mr. Kirtsaeng did, you would've been sued for copyright infringement the moment you brought the books over into the US and attempted to sell them. How was this allowed, even if you legally bought the books and merely brought them over to sell what's yours? This is due to the interpretation of the First Sale doctrine in the US Copyright Act under section 109, which states that: "the owner of a particular copy [of a copyrighted work]... lawfully made under this title, or any person authorized by such owner, is entitled, without the authority of the copyright owner, to sell or otherwise dispose of the possession of that copy..." When looking at the language of the section in itself, one cannot understand why it would act exactly against what it plainly says; that a person can sell what he has legally purchased without asking the copyright holder's for permission to do so. The interpretation of the section limiting it only to copies bought within the US was yet another Supreme Court statement in a different case, Quality King v L’Anza Research International. In the case the Supreme Court found that the definition of section 109, albeit stated purely as dicta (a legal term meaning it was not a matter contended in the case itself, but is merely a statement of opinion as to what the law is, making it non-biding in future cases, but can be used as a persuasive argument), that it would prevent the sale of copies in the US bought outside of the US itself. This definition has since been used to do exactly what Mr. Kirtsaeng contended. The outcome allows a person to sell what's rightfully theirs, even if it was bought outside of the US (though the copy has to be a legally made one, authorized by the copyright holder - I'm looking at you, bootleg CDs, videos and the like!).

These kids paid nothing for their books
So what does this mean for the consumer or the media industry? It will remain to be seen. Whether it will change the pricing dynamic in the US, bringing prices more closer to foreign ones if cheaper, is something that only time will tell. Will consumers take this and run with it? Will companies act preemptively to undercut their own prices to match those in cheaper countries? Personally I can't really say. With college textbook prices increasing over 600% since the 1990s, one can only hope the benefit will be to the end consumer, even in other categories of media.

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