October 29, 2012, 4:14 PM — U.S. residents who buy products protected by copyright shouldn't have to worry about where those products were manufactured before reselling them, a lawyer told the U.S. Supreme Court Monday.
If textbook maker John Wiley & Sons has its way, it could be illegal for U.S. residents to resell a large number of products made overseas, said lawyer Joshua Rosenkranz, representing Supap Kirtsaeng, a Thai man who financed his U.S. college education by importing textbooks he could buy cheaper in Asia and selling them on eBay in the U.S.
The Supreme Court heard arguments on Monday about whether to uphold a U.S. Court of Appeals for the Second Circuit ruling that could outlaw the resale of large numbers of products made outside the U.S., including books, CDs, DVDs and software. John Wiley & Sons sued Kirtsaeng for reselling versions of textbooks intended to be distributed outside the U.S.
The textbook maker argued the first-sale doctrine in U.S. copyright law applies only to products manufactured in the U.S.
But the first-sale doctrine allows buyers of material protected by copyright to resell it, no matter where it was produced, Rosenkranz argued. Copyright law does not give copyright holders "endless, eternal downstream control" over the sale of their products, he said.
Some justices questioned Rosenkranz's reading of the law, however. Copyright law has recognized the rights of copyright holders to control distribution in some cases, said Justice Ruth Bader Ginsburg. "Your position is, once a copy is sold anywhere, the copyright owner loses control of distribution everywhere," she said.
Much of the debate centered around the meaning of "lawfully made under this title," in section 109 of U.S. copyright law. "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," the law reads.
In its 1976 revision of copyright law, the U.S. Congress focused on preventing pirated copies of products to be sold in the U.S., Rosenkranz argued. The emphasis in the phrase, "lawfully made" was on the word, "lawfully," he said.
Therefore, products manufactured overseas in compliance with U.S. copyright law would be subject to the first-sale doctrine, he said.
If the first-sale doctrine were limited to products made in the U.S., then U.S. companies would have a huge incentive to move manufacturing overseas and limit the resale of their products, Rosenkranz said.