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Copyright case hot topic

| Saturday, Oct. 13, 2012, 9:12 p.m.

E-books pose copyright-law conundrums, but print books still can, too — as in a new U.S. Supreme Court case.

Oral arguments are set for Oct. 29 in Supap Kirtsaeng v. John Wiley & Sons Inc. Kirtsaeng, a native of Thailand who came to America to study at Cornell University, found textbooks published by Wiley were cheaper back home — so he got relatives there to buy copies and ship them to him here, where he sold them on eBay, making thousands of dollars.

Wiley sued him for infringing its U.S. copyrights on the textbooks' domestic editions. Kirtsaeng's defense? The “first-sale doctrine,” first recognized by the Supreme Court in 1908, that allows sales of used print books, CDs, DVDs and the like.

Wiley prevailed in federal district court and at the appellate level, where a lower court's ruling that first-sale doesn't apply to anything made overseas was upheld. Kirtsaeng then appealed to the Supreme Court.

The case has generated media reports hyping the notion advanced by Kirtsaeng's side that if Wiley prevails again, nobody would be able to resell anything foreign-made, from personal electronics to family heirlooms to artworks, and that libraries, museums, eBay and Craigslist could be affected. It's even suggested that such a ruling could prompt U.S. companies to move all their manufacturing overseas.

Wiley and its legal team declined comment for the record. Kirtsaeng's legal team did not respond to a request for comment. But Supreme Court filings illuminate the issue and each side's stance.

The court's online “question presented” page frames the issue as a conflict between U.S. copyright law's ban on importing works without copyright owners' blessing and the first-sale ability to resell without copyright owners' permission — with the works involved foreign-made.

Kirtsaeng's filing asserts that a pro-Wiley ruling would lead to “another level of absurdity that extends beyond the first-sale defense ... . All foreign-made products with copyrightable content would hold an exalted place in copyright law ... that no product ... has ever enjoyed.”

Wiley's filing notes that Kirtsaeng, without its permission, imported and resold — on a massive scale — textbooks clearly marked as for sale only in foreign countries.

Wiley also labels Kirtsaeng's contentions about widespread, unintended effects of a ruling favoring Wiley “speculative and unpersuasive,” suggesting Kirtsaeng aims to focus attention elsewhere than his own “ concededly unauthorized” reselling.

The publisher also cites case law from the past 30 years supporting its position, saying that if Kirtsaeng's right about potential “dire consequences, those consequences should already have occurred ... .”

“Your right to resell your own stuff is in peril” was the headline of a Wall Street Journal MarketWatch piece about the case — certainly more attention-grabbing than headlines that emphasize Wiley's position, but also more likely to make average Americans follow this case. The focus that counts — that of the justices — will be evident in their eventual ruling.

Alan Wallace is a Trib Total Media editorial page writer (412-320-7983 or awallace@tribweb.com).

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