In 2012, the United States Supreme Court case, Kirtsaeng v. John Wiley & Sons, Inc., made a determination as to whether individuals are able to sell used books and other copyright-protected goods. Supap Kirtsaeng had his family, who was living in Thailand, purchase textbooks that were much cheaper than their original selling price in the United States and then sold them on eBay to turn a profit of roughly $900,000. These books were purchased legally in Thailand; however, the original publishing company, John Wiley & Sons, Inc., believed his actions resulted in copyright infringement. The Supreme Court, in a 6-3 decision, affirmed the right of the purchaser of copyright-protected work to resell or use the work without the copyright holder’s permission. In other words, the decision allows individuals to resell a legally purchased copyrighted work, such as a book or CD.
The decision affirmed the First Sale Doctrine that was codified by the Copyright Act of 1976 at 17 U.S.C. 109(a). The First Sale Doctrine upholds the ability for “the owner of a particular copy or phonorecord [that is] lawfully made, 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.”
This ruling affirmed the existence of secondary markets, such as eBay, Craigslist, libraries, and ongoing garage sales which resell copyright-protected items and use the First Sale Doctrine to avoid asking permission for each item they sell or lend. The ruling pitted wholesale businesses, such as Costco Wholesale Corporation and eBay Inc., against publishing houses who believe that copyright protections are fundamental for protecting creative industries.
As a result, the Motion Picture Association of America and the Recording Industry Association of America has concerns about their competitiveness on the international market and have expressed uncertainty about the ways in which the court ruling may negatively impact both domestic and foreign business. For example, business owners stated that the ruling diminishes the control that publishers and moviemakers have over their products, as well as their ability to control the price.
Many argue that the ruling is a major development for industries that rely on copyright-protected material and sparked ongoing conversation about copyright in a digital and global age. The ruling was followed by many controversial public reactions leaving critics to identify two major ramifications for sellers and buyers. Prior to the case, publishers sold books at different price points depending on the region; however, the borders of those areas have been pushed open due the cheap imports that Kirtsaeng received from Thailand. Publishers may find it increasingly difficult to charge different prices for books in different regions, therefore corroding territorial rights trade. The current copyright system has been under stress due to the myriad of concerns than arise from technology-related issues. The Register of Copyrights, Maria Pallante, has posed the next great Copyright Act and believes this is only the beginning of an ongoing conversation about copyright law in an increasingly borderless market.
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