US Supreme Court to look at NSA spying, resale of products

The court hears arguments Monday in two cases with broad implications for technology users

By , IDG News Service |  

The U.S. Supreme Court will hear arguments Monday in two cases with potentially broad implications to technology users, one reviewing whether consumers can resell copyright-protected products they have purchased and the second challenging an electronic surveillance program at the U.S. National Security Agency.

In one case, Kirtsaeng v. John Wiley & Sons, the court will hear a challenge to the long-established first-sale doctrine, which allows consumers to resell products protected by copyright without the copyright owner's permission. The case, examining whether products manufactured overseas are protected by the first-sale doctrine, could have a huge impact on eBay, Craigslist, libraries and ordinary U.S. residents who try to resell a wide range of products made overseas, including CDs, DVDs and books, critics say.

The court battle involves a Thai student who imported textbooks into the U.S. from his homeland and sold them on eBay in competition with the publisher.

A lower court ordered Supap Kirtsaengto, who attended graduate school in the U.S., to pay John Wiley & Sons Inc. US$600,000 for importing the publisher's textbooks, available for a lower cost in Thailand.

Tech-related groups and businesses including eBay, NetCoalition, the Computer and Communications Industry Association, TechAmerica and Public Knowledge have all called for the Supreme Court to throw out a 2011 decision by the U.S. Court of Appeals for the Second Circuit allowing consumers to resell copyright-protected works only when they are produced in the U.S.

The Second Circuit reached an "extreme conclusion" in the case, according to a court brief filed by eBay, NetCoalition, CCIA, TechAmerica and other tech groups. The appeals court defined the phrase, "lawfully made under this title," in copyright law to mean manufactured in the U.S.

The Second Circuit's decision would "substantially threaten" e-commerce, the tech groups said in their brief. "The Second Circuit's rule not only is inconsistent with the terms, structure, history and purpose of the copyright act, but it also allows for significant adverse consequences for trade, e-commerce, secondary markets, small businesses, consumers, and jobs in the United States," lawyers for the groups wrote.

An adverse decision at the Supreme Court could mean that libraries will have to stop lending books, said Corey Williams, associate director of the American Library Association's Office of Government Relations. It's often difficult to determine where a book is manufactured, with some publishers outsourcing that portion of their business, she said.

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