The US Supreme Court has handed down a verdict in Kirtsaeng v. John Wiley & Sons, one of the most important copyright cases of the century. In it, the publisher John Wiley & Sons sought to block the import of legally purchased cheap overseas editions of its books by arguing that “first sale” (the right to resell copyrighted works) only applies to goods made in the USA. However you feel about cheap overseas editions and their importation into the USA, this was a disastrous legal theory. Practically everything owned by Americans is made outside of the USA and almost all of it embodies some kind of copyright. Under Wiley’s theory, you would have no first-sale rights to any of that stuff — you couldn’t sell it, you couldn’t even give it away. What’s more, the other “exceptions and limitations” to copyright would also not apply, meaning that it would be illegal to photograph anything made outside of the USA (no di minimum exemption) or to transform it in any way (no fair use, either). Thanks goodness the Supremes got this one right!
Here’s some choice bits of the decision (PDF)
These intolerable consequences (along
with the absurd result that the copyright owner can exercise downstream control even when it authorized the
import or first sale) have understandably led the Ninth
Circuit, the Solicitor General as amicus, and the dissent to
adopt textual readings of the statute that attempt to
mitigate these harms. Brief for United States 27–28;
post, at 24–28. But those readings are not defensible, for
they require too many unprecedented jumps over linguis
tic and other hurdles that in our view are insurmountable.
See, e.g., post, at 26 (acknowledging that its reading of
§106(3) “significantly curtails the independent effect of
§109(a)”).…In reaching this conclusion we endorsed Bobbs-Merrill
and its statement that the copyright laws were not “in
tended to create a right which would permit the holder of
the copyright to fasten, by notice in a book . . . a restriction
upon the subsequent alienation of the subject-matter of
copyright after the owner had parted with the title to one
who had acquired full dominion over it.” 210 U. S., at 349–350.
And here’s a serious smackdown of the “if I can make money doing it, copyright should protect it” theory of law:
Third, Wiley and the dissent claim that a nongeographical interpretation will make it difficult, perhaps impossible, for publishers (and other copyright holders) to divide
foreign and domestic markets. We concede that is so. A
publisher may find it more difficult to charge different
prices for the same book in different geographic markets.
But we do not see how these facts help Wiley, for we can
find no basic principle of copyright law that suggests that
publishers are especially entitled to such rights.
Supreme Court Upholds First Sale Doctrine
Update: a great comment from Shrikant, below:
It would appear that the Supreme Court has essentially just paraphrased Robert Heinlein from Life-Line:
“There has grown up in the minds of certain groups in this country the notion that because a man or corporation has made a profit out of the public for a number of years, the government and the courts are charged with the duty of guaranteeing such profit in the future, even in the face of changing circumstances and contrary to public interest. This strange doctrine is not supported by statute or common law. Neither individuals nor corporations have any right to come into court and ask that the clock of history be stopped, or turned back.”