Wiley v. Kirtsaeng: Will the Supreme Court Illegalize Your Library?

Tuesday, October 30, 2012, by Lauren Powers
On October 29, 2012 the United States Supreme Court began hearing arguments in a case that pits the corporate publication industry against an independent student textbook seller.  A ruling in favor of the publisher could produce radical changes in United States Copyright Law, potentially halting business created by companies like eBay and Amazon, not to mention public libraries’ abilities to lend books.
In this case the publisher John Wiley & Sons is suing Supap Kirtsaeng for copyright infringement based on Kirsaeng’s reselling of foreign textbooks to American students at a highly discounted price.  Kirsaeng, like many college students, resented the high cost of textbooks in the United States.  Thus, he was thrilled when he discovered that international editions of books like those found in his native Thailand could be bought at much lower prices than the American books.  Naturally, publishers like John Wiley & Sons are not pleased that these textbooks designated for sale and use outside of the United States have made their way past our borders where the publishers sell the same books for much higher prices.
Did the publishers think that by marking these books as only available in markets outside of the United States that the books would actually stay out of the country? Quite clearly the answer is no based on the warning labels found on these books threatening litigation.  It is far too easy for an international student attending a university in the United States to buy his books in his home country for a reduced price.  And that is precisely what Kirtsaeng did.  The real problems arise, however, when the international editions of these books are then resold online to other students in the United States.  Online retailers like eBay and Amazon cite their policies against infringing United States Copyright Law, but it is far too gargantuan a task for these companies to constantly police their sites for sellers like Kirtsaeng. 

If the Supreme Court rids copyright law of the first sale doctrine, then the copyright owners could control their works permanently, potentially even denying public libraries from lending books.

That being said, what would the publishers have the Supreme Court do to combat this “gray market” of textbook sales?  They are pleading for the Supreme Court to eliminate the “first sale” doctrine upheld in Quality King v. L’Anza.  The “first sale” doctrine permits the purchaser of a work from the copyright owner to gain the right to sell that copy of the work to another party.  If the Supreme Court rids copyright law of this doctrine, then the copyright owners could control their works permanently, potentially even denying public libraries from lending books. 
However, it remains unclear how the Supreme Court will come out on this case.  Thus far student resellers like Kirtsaeng have lost in various federal district courts and courts of appeals, but the Supreme Court could be a very different story indeed based on precedent from Omega v. Costco.  The decision in Omega was 4-4 because Justice Kagan recused herself after filing an amicus brief as Solicitor General in favor of Omega.  In the present case, however, all of the justices will be involved, so a true majority opinion will result.  The question is, will they uphold the “first sale” doctrine and allow students to continue to sell books on the gray market, or will they completely change United States copyright law and potentially close our libraries?  Given these outcomes, my guess is that the little guys like Kirtsaeng may finally see a victory.