First Sale Doctrine and Kirtsaeng v. Wiley & Sons, Inc.
The first sale doctrine of U.S. copyright law (17 U.S.C. § 109(a)) is articulated as,
…the owner of a particular copy or phonorecord lawfully made under this title, 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.
Quite simply, first sale is what allows libraries to do what we do – lend books and materials to our patrons, the public.
First Sale in the Spotlight
The court case Kirtsaeng v. John Wiley & Sons, heard by the U.S. Supreme Court on October 29, 2012, has thrust the issue of first sale into the spotlight. To summarize the case, textbook publisher Wiley claims that Kirtsaeng infringed their copyrights by re-selling foreign editions of Wiley textbooks at a cheaper price in the U.S., even though Kirtsaeng’s family lawfully purchased the textbooks abroad. At issue is the first sale doctrine which is the provision of U.S. Copyright Act that allows any purchaser of a legal copy of a book or other copyrighted work to sell or lend that copy. However, the U.S. Court of Appeals for the Second Circuit upheld the U.S. District Court for the Southern District of New York’s ruling by also determining the first sale doctrine applies only to copies manufactured in the U.S. This arguably odd interpretation effectively strips libraries of their first sale rights to lend copies of books and materials manufactured abroad.
In addition, the Owners’ Rights Initiative (ORI) (of which the ALA is a founding member) produced two short videos in January 2013:
- ORI Members Express Concerns about the Erosion of Owners’ Rights
- Consumers Can Hardly Believe What’s at Stake in the Kirtsaeng Case
January 18, 2013
The Library Copyright Alliance (of which the American Library Association is a member) has published a one-page summary, “First Sale Fast Facts for Libraries,” that provides key information to understand the first sale doctrine and what is at stake in the Kirtsaeng v. Wiley & Sons, Inc. case.
October 29, 2012
The U.S. Supreme Court heard oral arguments in the case of Kirtsaeng v. Wiley & Sons, Inc. The transcript of the oral arguments is available here and the audio is available here. (As an aside, he Supreme Court was the only federal office open the day Hurricane Sandy struck the Washington, DC, area.)
October 23, 2012
The American Library Association announced that it joined—as a founding member—the Owners’ Rights Initiative (ORI)—a coalition of retailers, libraries, educators, Internet companies and associations working to protect ownership rights in the United States.
The coalition was formed to champion “first-sale rights,” or ownership rights, as the issue will be taken up by the U.S. Supreme Court in the case of Kirtsaeng vs. Wiley & Sons, Inc. on October 29, 2012. The Supreme Court’s decision could have adverse consequences for libraries and call into question libraries’ abilities to lend books and materials that were manufactured overseas.
Please see the ALA Washington Office’s District Dispatch blog post on October 23 titled ALA Joins Coalition to Protect Library Lending Rights for additional information.
July 3, 2012
The American Library Association (ALA) – as member of the Library Copyright Alliance (LCA) also comprised of the Association of College & Research Libraries (ACRL), and the Association of Research Libraries (ARL) – filed an amicus curiae or friend of the court brief (pdf) with the Supreme Court in support of the petitioner Supap Kirtsaeng.
As the LCA’s brief explains,
This case concerns the meaning of the phrase “lawfully made under this title” in Section 109(a). The Second Circuit ruled that “lawfully made under this title” means lawfully manufactured in the United States….In other words, how this Court interprets the phrase “lawfully made under this title” could determine the extent to which libraries can continue to perform their historic function of lending books and materials to the public.
The LCA believes that an adverse decision in this case by the Supreme Court (i.e. upholding the Second Circuit Court of Appeals decision), could affect libraries’ right to lend books and other materials manufactured abroad.
In the News
- Library Associations Brace for First Sale Fight with Owners' Rights Lobby Effort Library Journal 10/23/12
- Carrie Russell, ALA Washington Office, was a guest panelist, along with Jonathan Band and Kevin Smith, on Association of Research Libraries-hosted first sale webcast on October 16, 2012.
- Amicus curiae briefs filed with the Supreme Court in Kirtsaeng v. Wiley & Sons, Inc.
This is not the first time the Supreme Court has taken up the issue of the first sale doctrine. The Library Copyright Alliance filed a brief (pdf) in 2010 with the Supreme Court in Costco Wholesale Corporation v. Omega, S.A., a case involving the importation of luxury watches with copyrighted logos. Ultimately, the Court was deadlocked 4-4, leaving the issue unresolved. Justice Kagan recused herself from the case due to her participation in the lower court when she was Solicitor General. However, Justice Kagan will participate in the Kirtsaeng case.