Theodore Olson, representing the textbook maker, argued that section 602 of U.S. copyright law is clear in outlawing the importation of copyright-protected materials without the permission of the copyright holder.
But in that case, an owner of a Toyota car manufactured in Japan couldn't resell it if the GPS or audio system had components protected by copyright, said Justice Stephen Breyer. A library couldn't lend a foreign-made book, and a museum couldn't display foreign-made art, without permission of the copyright holder, he said.
Those "hypothetical" examples differ from this case, in which Kirtsaeng was importing textbooks in competition with the publisher, Olson answered.
The justices need to consider the possible effects of ruling in the favor of the textbook maker, Justice Samuel Alito countered. "We need to think about the consequences of our decision," he said.
Sections 109 and 602 of copyright law seem to conflict, said Justice Elena Kagan. "I find this language a little bit perplexing," she said. "I can kind of see it both ways."
Public Knowledge, eBay and Goodwill Industries filed briefs in support of Kirtsaeng, while the Business Software Alliance, the Software and Information Industry Association, and the Motion Picture Association of America filed briefs in support of John Wiley & Sons.
Grant Gross covers technology and telecom policy in the U.S. government for The IDG News Service. Follow Grant on Twitter at GrantGross. Grant's e-mail address is grant_gross@idg.com.
