Kirtsaeng v. John Wiley & Sons: How the Supreme Court Will Decide the Fate of eBay, Libraries, and Yard Sales

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The Supreme Court recently heard oral arguments concerning the global reach of domestic copyright law. At issue in Kirtsaeng v. John Wiley & Sons is the first sale doctrine, which permits the owner of a copyrighted item to resell, rent, or otherwise distribute the physical item once it has been initially purchased. The case specifically involves the interplay of the first sale doctrine with a provision of the Copyright Act making it unlawful to import copyrighted works acquired abroad without permission from the copyright owner.

The facts of the Kirtsaeng case illustrate the difficulty of the legal question before the Supreme Court. The petitioner in Kirtsaeng was a graduate student who subsidized his education by selling textbooks on eBay and other online marketplaces. He was able to earn money from the endeavor because the books were being shipped from his native Thailand, where he had enlisted his family to purchase select titles from local bookstores. Price variation between Thailand and the United States allowed the student to earn approximately $100,000 in profits from the textbooks over the course of about one year. When the publisher learned of the scheme, it sued the student in a New York federal court for infringing its copyright in the textbooks. The student raised the first sale doctrine as a defense, arguing that the initial sale to his family members in Thailand provided a safe harbor for his activities.

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