Posts Tagged "First Sale Doctrine"

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Kirtsaeng v. Wiley: Supreme Court Creates New Class of Business Venture

Posted by on Mar 27, 2013 in Copyright, First Sale Doctrine

The Supreme Court decided this week the case of Kirtsaeng v. John Wiley & Sons. The opinion will undoubtedly have a large impact on intellectual property law. This case deals with a Thai national who was subsidizing his college tuition in the U.S. by having his relatives in Thailand buy textbooks for cheap, shipping them to him in the US, and then selling the text books to Americans on sites such as eBay. He made about a $100,000 profit off this enterprise. Eventually, the publisher caught wind, and sued. This enterprise is known as the “gray market”. Exploiting the price differential between the US and overseas can be quite profitable. The legality of this practice differs depending on the type of good being sold. Prior to this ruling, on copyrighted goods purchased overseas, most judges were ruling against the gray marketeers. Kirtsaeng argued that the ‘first sale doctrine’ creates an exception that validates his actions. The “first sale doctrine” in copyright law permits the owner of a lawfully purchased copy of a copyrighted work to resell it. Once you buy a copy of something, you own that copy. You can do as you wish with it. This is codified at 17 U.S.C. § 109(a) of the Copyright Act of...

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Importing Copyrighted Works, Kirtsaeng v. Wiley and Your Rights to Your Property

Posted by on Jan 30, 2013 in Copyright

The Supreme Court has recently heard arguments in the case of Kirtsaeng v. John Wiley & Sons. The opinion is expected soon, and regardless of how the court rules, it will have a large impact on intellectual property law. This case deals with a Thai national who was subsidizing his college tuition in the U.S. by having his relatives in Thailand buy textbooks for cheap, shipping them to him in the US, and then selling the text books to Americans on sites such as eBay. He made about a $100,000 profit off this enterprise. Eventually, the publisher caught wind, and sued. This enterprise is known as the “grey market”. Exploiting the price differential between the US and overseas can be quite profitable. The legality of this practice differs depending on the type of good being sold. At trial, and on appeal to the 2nd Circuit, John Wiley & Sons, Inc. v. Kirtsaeng, 654 F.3d 210, (2d Cir. 2011), Kirtsaeng argued that the ‘first sale doctrine’ makes his actions legal. The “first sale doctrine” in copyright law permits the owner of a lawfully purchased copy of a copyrighted work to resell it. Once you buy a copy of something, you own that copy. You can do as you wish with...

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First Sale Doctrine: Foreign Manufactured Goods

Posted by on Jul 16, 2012 in Copyright

On July 3, the Library Copyright Alliance filed an amicus brief with the Supreme Court as a result of their decision to review the Second Circuit’s decision in John Wiley & Sons v. Kirtsaeng. The decision interpreted the first-sale doctrine, which allows legal owners to resell, lend, or dispose of copyrighted works after purchase, to apply only to works manufactured in the United States. As a result, foreign manufacturers have greater control over their products under U.S. law. Many organizations like libraries and museums have submitted amicus briefs urging the Supreme Court to reject this interpretation since they depend on the first-sale doctrine to operate. In December 2010, the Supreme Court faced a similar issue in Costco Wholesale Corp. v. Omega. In that case, the Supreme Court held that the first-sale doctrine only applied to U.S. manufactured works. The unwritten ruling was based on a 4-4 split by the court. Justice Elena Kagan did not take part, since she was involved in the issue as the Solicitor General. When Kirtsaeng reaches the Supreme Court next year, however, she could be the deciding vote that finally determines the issue. In the Kirtsaeng case, the Second Circuit upheld a jury award of statutory damages to John Wiley & Sons, after Supap...

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