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Resale Law Case at Supreme Court Could Radically Change Commerce

By Catholic Online (NEWS CONSORTIUM)
October 8th, 2012
Catholic Online (www.catholic.org)

A little known case could shortly change how all Internet auction sites are run and every last garage sale across the U.S. is conducted. The case in question is the Kirtsaeng v. John Wiley & Sons, the first-sale doctrine in copyright law. The law allows the individual to buy and then sell things like books, artwork, CDs and DVDS without getting permission from the copyright holder of those products. This could change --

LOS ANGELES, CA (Catholic Online) - A Supreme Court case could limit the resale of goods made overseas but sold in America. The Supreme Court has recognized the law, since 1908, you can resell your items without worry because the copyright holder only had control over the first sale.

Put simply, though Apple Inc. has the copyright on the iPhone and Mark Owen has it on the book "No Easy Day," you can still sell your copies to anyone without retribution.

The law is now being challenged now for products that are made abroad. If the Supreme Court upholds an appellate court ruling, it would mean that the copyright holders of anything you own that has been made in Japan, China or Europe -- would have to give you permission to sell it.

"It means that it's harder for consumers to buy used products and harder for them to sell them," Jonathan Band, an adjunct professor at Georgetown University Law Center says. Band filed a friend-of-the-court brief on behalf of the American Library Association, the Association of College and Research Libraries and the Association for Research Libraries. "This has huge consumer impact on all consumer groups."

This would greatly impact the independent seller financially, as the copyright holder would now desire a piece of that sale.

These personal items would theoretically extend from your personal electronic devices or the family jewels that have been passed down from your ancestors who emigrated from Romania.

There are heavy implications for a variety of wide-ranging U.S. entities, including libraries, musicians, museums and even resale juggernauts eBay Inc., Amazon and Craigslist. U.S. libraries, for example, carry some 200 million books from foreign publishers.

"It would be absurd to say anything manufactured abroad can't be bought or sold here," Marvin Ammori says, a First Amendment lawyer and Schwartz Fellow at the New American Foundation.

The case stems from Supap Kirtsaeng from Thailand who came to America in 1997 to study at Cornell University. When he discovered that his textbooks, produced by Wiley, were substantially cheaper to buy in Thailand than they were in Ithaca, N.Y., he asked his relatives in his homeland to buy the books and ship them to him in the U.S.

Kirtsaeng then sold them on eBay, making upward of $1.2 million, according to court documents.

Wiley then admitted that it charged less for books sold abroad than it did in the U.S. and sued him for copyright infringement. Kirtsaeng countered with the first-sale doctrine.

 In August 2011, the U.S. Court of Appeals for the Second Circuit upheld a lower court's ruling that anything that was manufactured overseas is not subject to the first-sale principle. Only American-made products or "copies manufactured domestically" were.

"That's a non-free-market capitalistic idea for something that's pretty fundamental to our modern economy," Ammori commented.

The Supreme Court is scheduled to hear oral arguments on the case on Oct. 29.
 

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