Supreme Court to Revisit First Sale Doctrine in Next Term

April 17, 2012 -

The Supreme Court will hear a case related to the First Sale Doctrine. The court decided Monday that it would hear arguments in its next term related to a case that will test the reach of U.S. copyright law outside of the United States. The Federal circuit courts of appeal are split on the issue. The case is Kirtsaeng v. John Wiley & Sons (docket 11-697).

The case concerns book publisher John Wiley & Sons and a California entrepreneur named Supap Kirtsaeng, who was reselling textbooks purchased overseas to US-based students without the publisher’s consent. The publisher sued in New York federal court, and a jury agreed with John Wiley & Sons’ position that the first-sale doctrine did not apply to the case, awarding it $600,000 in damages for copyright infringement. The case then went on to the federal appeals court.

The first-sale doctrine generally allows the purchaser of any copyrighted work to re-sell or use the work in different ways without the copyright holder’s permission. In 2010 the Supreme Court ruled that the first-sale doctrine did not apply to overseas purchases of copyrighted works which were imported for resale in the United States, but because the court was divided 4-4 on that case, the ruling did not set a nationwide precedent and only affirmed a lower court’s ruling.

SCOTUS Blog points out that the reason the Supreme Court wants to take on this case related to the "gray market" (buying overseas and selling here) is because the Circuit Courts seem to be struggling with the issue of how to apple First Sale Doctrine to these types of cases:

"There is now a three-way split among the Circuit Courts: the Second Circuit declaring that foreign-made works can never be resold in the U.S. without the copyright owner’s consent, the Ninth Circuit ruling that such a foreign-made product sometimes can be sold in the U.S. without permission, but only after the owner has approved an earlier sale inside the U.S., and the Third Circuit deciding that such a product can always be re-sold without permission, so long as the copyright owner had authorized the first sale that occurred overseas."

Source: Ars Technica


Comments

Re: Supreme Court to Revisit First Sale Doctrine in Next Term

So copyright law may interfere with (not just) game imports?  Hah, reminds me of the old Acts of Gord website when Gord had the kid telling him that he wasn't allowed to sell imported games because of what Nintendo Power said.  Of course, that was in Canada.

 
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