Used? Or internationally used?

Have you ever been in the market for a textbook? If so, you, like most students enrolled in college these days, were probably shocked by some of the exorbitant prices that university bookstores charge for a book. For example, if you were in the market for a brand new Constitutional Law textbook you would be forking over $216.00 plus taxes. If you are a discerning shopper, you probably turned to websites like Amazon.com to find a used version of the book. Maybe you were even lucky enough to find an “international edition” of the textbook, which was being sold at a fraction of the price. Of course, when you went to purchase these books on the secondary market, you had your reservations. You stopped to think about whether the book was in good condition, whether it would arrive in time, whether you would get it at all. However, you probably did not think about the copyright law implications of your purchase.

It has been well-settled in copyright law that a book published and purchased in the United States can be resold by the first purchaser without infringing  on the rights of the copyright owner. The “first sale doctrine,” codified at 17 USC 109(a), states that “the owner of a particular copy or phonorecord 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 or phonorecord.” Many people take advantage of this longstanding doctrine every day: consumers who shop with Amazon, eBay, or just the average used bookstore can all purchase second-hand books without worrying about violating a copyright holder’s exclusive distribution right.

Recently, however the resale of “international editions” of books came into conflict with the first sale doctrine. A book publisher, which sells international editions of textbooks in Thailand at a lower price than they are sold in the US, sued a graduate student who was importing these books and selling them below US market value. This week, the Supreme Court released its opinion in Kirtsaeng v. John Wiley & Sons Inc., finally resolving the issue. Professor Daniel Gervais recently summarized the opinions of the Court in an article.

Raymond Rufat

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2 Responses to First Sale Gone Wild

  1. J.P. Urban says:

    I think this opinion is a huge decision as it stands today, but if international IP and the global economy continue to develop in the coming years, Kirtsaeng will prove either to be nothing more than common sense or an antiquated case stuck in the days of physical works. As marketplaces globalize, so will the parity of pricing around the world. Additionally, it is still unclear in many respects how the first-sale doctrine and digital copies of books is going to play out in the long run, but if physical textbooks ever do become irrelevant, I believe Kirtsaeng may go with them.

  2. Hunter says:

    It will be fascinating to see how Kirstaeng plays out on the ground. Perhaps I’m wrong, but I can’t imagine that there will be too many enterprising students who copy Kirstaeng’s exact method of purchase/importation/resale to materially influence markets. But the court’s opinion appears to leave the door open for other sorts of cottage industries to spring up and take advantage of the holding…