First Sale Doctrine Upheld in Kirtsaeng v. Wiley
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  • March 20, 2013
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37621686_0dcd0e12e5[1]The US Supreme Court has just released their ruling on the copyright infringement case Kirtsaeng v. Wiley, and it is everything I had hoped. The US SC has ruled that you do have the legal right to resell legally purchased content that was produced outside the US.

Today’s decision is the conclusion of a 5 year old case of so-called copyright infringement that clearly never was.

Back in 2008 the technical publisher John Wiley filed suit against Supap Kirtsaeng, a foreign exchange student studying in the US. Mr. Kirtsaeng had built a small arbitrage business out of having his relatives in his native Thailand buy the cheaper foreign edition college textbooks and then ship them to Kirtsaeng here in the US, where he would then sell the textbooks to cash-strapped students.

Publishers aren’t too happy about having to compete against their own products, so Wiley filed suit in 2008 and claimed copyright infringement. After a couple rounds of argument, ruling, and appeal, this case ended up in the US Court of Appeals for the Second Circuit where a 3 judge panel decided that Wiley was correct in claiming that Kirtsaeng did not have any right to sell the textbooks (ruling). Their decision was based on the belief that since the textbooks had been made outside the US the legal principle of First Sale Doctrine did not apply.

The US Supreme Court disagreed, and today they made it clear that the  First Sale Doctrine applies to all legally purchased content, no matter where it was originally produced or sold. This is very good news for everyone but the publishers.

As I reported when I covered this story back in January, the worst case scenario was dire. Had the decision gone the other way way, it would have killed the resale market:

It’s not just that you cannot sell your (made in China) DVDs, or the fact that you cannot sell anything that came with a user manual and was made in another country. No, it’s when you realize that this decision includes software that understand realize just how insane it is. Software is copyrighted, so if the device it is running on was made outside the US you cannot sell it.

That means you cannot sell you mp3 player. You cannot sell your Kindle. You cannot sell your computer. You can’t even sell a car, not unless you want to first get permission of the manufacturer.

You can find the complete ruling here.

image by dbking

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