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Booksellers wait on Supreme Court decision: Could selling a used book become illegal?

A ruling on John Wiley & Sons Inc. v. Kirtsaeng – a case expected to come before the Supreme Court early next year – could make it illegal for non-profits and businesses to resell copyrighted works produced abroad.

By Husna Haq / December 4, 2012

Retailers like Amazon and eBay could be affected by the Supreme Court ruling on whether it's legal to resell books purchased abroad.

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Is reselling a used book illegal?

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It might be, depending on the outcome of a Supreme Court case that will have far-reaching consequences for retailers of used goods across the nation. 

The nation’s highest court is considering a copyright case that could make it illegal for non-profits and businesses – used booksellers, online giants like Amazon and eBay, even libraries, museums, and Goodwill – to resell copyrighted works produced abroad.

The case everyone is watching? John Wiley & Sons Inc. v. Kirtsaeng. The defendant, an enterprising University of Southern California doctoral student named Supap Kirtsaeng who is a native of Thailand, found purchasing textbooks in the US prohibitively expensive. So Kirtsaeng had friends and family find cheaper, Thai-manufactured editions of the same textbooks in Thailand and ship them to the US, where Kirtsaeng began reselling them on websites like eBay for a profit.

Textbook publisher Wiley learned of his business and sued Kirtsaeng for copyright infringement. The jury in the US District Court for the Southern District of New York found Kirtsaeng liable for copyright infringement and awarded Wiley $600,000 in damages.

The case was appealed to the Second Circuit and eventually to the Supreme Court, which is honing in on one particular aspect of copyright law.

Under scrutiny is the Copyright Act’s 1908 “first sale” doctrine, which provides that after a copyrighted good (like a book or CD) has been sold once, it can be resold for profit without the authorization of the copyright owner. At the crux of the matter (and what the Court is ruling on) is whether the “first sale” doctrine applies to any copyrighted work, regardless of where it was manufactured, or only those manufactured in the US.

If it rules that the “first sale” doctrine only applies to copyrighted goods manufactured in the US, it could render illegal the sale of used books, media, art, and other copyrighted works produced abroad. Which is why interested parties, from the Association of American Publishers to Goodwill to eBay, Powell’s Books, and the American Library Association are watching the case closely.

“Right now, if you go to a flea market or a book sale at a local library or a fundraiser church sale, there's a number of books or CDs or videos you can purchase on a second-hand basis without providing any money or royalty to the copyright owner,” attorney David Oberdick, head of the intellectual property department at Meyer Unkovic & Scott, Downtown, told the Associated Press. “In this case, you have people talking about a Pandora's box that could occur if the first-sale doctrine is limited to works created within the United States.”

In other words, the Court’s decision could have major ramifications for retailers of used works, from your local used bookstore to Amazon and eBay. It could also return control over the distribution of copyrighted works to content owners.

The Court is likely to issue a decision early next year.

Husna Haq is a Monitor correspondent.

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