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The Supremes have agreed to hear a case that has some troubling implications for libraries. Kirtsaeng v. Wiley is not just about textbooks. It’s about whether any work that is copyrighted and produced outside the United States can be legally loaned or resold in the U.S. without the copyright owner’s permission. We’re talking about the First Sale Doctrine, which is how libraries get away with our profligate sharing. Once we have purchased something, we can loan it. (Since digital books are typically licensed, not sold, libraries only can loan them if the publisher says they can.) It’s also how used books enter the market and how you pass along a book you read and enjoyed to a friend without getting in trouble. But it may be a right that only applies to books manufactured within the borders of the United States. And a lot of books aren’t, even books from U.S. publishers.
Here’s the issue, from the SCOTUS website: “How do Section 602(a)(1) of the Copyright Act, which prohibits the importation of a work without the authority of the copyright’s owner, and Section 109(a) of the Copyright Act, which allows the owner of a copy ‘lawfully made under this title’ to sell or otherwise dispose of the copy without the copyright owner’s permission, apply to a copy that was made and legally acquired abroad and then imported into the United States?”
The court cases involved have nothing to do with libraries. In 2010 the Supremes ruled on Costco v. Omega, a squabble about whether a watch with a teeny tiny copyrighted image on it could be bought more cheaply overseas by a chain store and sold at a discount in the U.S. without the manufacturer's permission. The Ninth Circuit said no, the first sale right didn’t apply to purchases made outside the United States, and the Supremes agreed in an evenly split decision. Because there wasn’t a majority, (Kagan recused herself, having been involved in the case previous to joining the Supreme Court) the decision was only binding in the Ninth Circuit.
The other case in question is about an enterprising young man who made a lot of money selling cheaper versions of textbooks to U.S. students after his friends and relatives in Thailand purchased them abroad and mailed them to him. He argued that the first sale protected his resale of those books on Ebay. Wiley argued he violated their copyright by importing books intended only for a foreign market. The court ruled Kirtsaeng couldn’t rely on the first sale doctrine as a defense. That seems reasonable when you’re talking about hundreds of thousands of dollars’ worth of books that one might argue were not legally imported. But when you say “the first sale doctrine doesn’t cross borders,” that has wider implications.
The Ninth Circuit had made an exception in Costco v. Omega for libraries, saying their decision shouldn’t restrict the first sale right applying to books manufactured abroad and imported into the U.S. with permission of a U.S. copyright holder. But as Jonathan Band points out, that exception was rejected by the Second Circuit, which argued there was no legal basis for it.
Kevin Smith has outlined an argument that international trade agreements should allow us to leave home and still benefit from the First Sale doctrine, but he’s not at all sure that’s what will happen. There are lot of troubling implications, not just for libraries. U.S. companies that want to regulate sales after the first sale will have incentives to shift all manufacturing abroad. They could decide what can be legally available to U.S. citizens. Llibraries may have to rely on authorized importers rather than order any books from abroad – and hope that nobody sues them for loaning the books already on their shelves that have suddenly lost their first sale rights.
I’d like to think the court will be sensible and ensure that libraries can continue to share books without worrying about where it was manufactured. But more and more, it seems the sharing libraries do – that we all do, sharing that culture depends on - is losing legal ground on every front because corporations don’t want to give up control of their intellectual property. Businesses that get to operate globally can restrict who gets access to what based on national borders. Capital and jobs can cross borders; people looking for work and the expression of ideas? Not so much. I find this all profoundly confusing.
