EFF—together with Public Knowledge, two national library associations, and U.S. PIRG—submitted a brief yesterday urging the United States Supreme Court to begin the process of rescuing first sale rights, which have been under assault for decades.
The brief was filed in the case of Wiley v. Kirtsaeng, which turns on the re-sale of textbooks in the U.S. This fall, hundreds of thousands of students will head off to college, ready to fill their heads with knowledge. What they may not realize yet is that they will also be filling the coffers of U.S. textbook publishers, which sell required college texts at exorbitant prices knowing students have little choice but to cough up the cash.
Standing in the way of this tidy scheme is the used textbook market, and that market—not to mention used bookstores, libraries and video rentals—depends on our time-honored first sale doctrine. Under this doctrine, the buyer of a book or any other copyrighted work has the right to dispose of that particular copy as she sees fit.
Unless, according to two appellate courts, those books happened to be manufactured outside of the United States. Due to an obscure provision in U.S. law, those courts have held that the first sale doctrine applies only to works made in the USA. In other words, if copyright owners are crafty enough to outsource the actual manufacture of their works abroad, they can control future redistributions of copies of works that were manufactured abroad, for the entire copyright term.
Our amicus brief urges the United States Supreme Court to reject that interpretation. As we explain, courts are supposed to interpret laws so as to avoid absurd results. Limiting first sale to works made in the United States encourages at least two perverse outcomes: American consumers lose access to affordable used copies of products, and companies move America manufacturing and related jobs overseas. Congress could not have intended these results. What is worse, given that copyrighted works are embedded in all kinds of goods, from refrigerators to watches, the ramifications would reach well beyond the traditional book market.
But this case is important for another reason: it is a chance for the Supreme Court to send a message about the future of first sale rights. Over the past decade, courts and copyright owners have quietly been creating a world in which goods that contain copyrighted works are never truly owned, but only licensed. And those licenses inevitably contain a plethora of legal restrictions on consumers' ability to fully use those goods. Never mind that the consumer paid for a permanent copy and the seller doesn't really expect that the buyer ever give it back—the fine print claims to transform a sale into something else.
The public should be watching this case closely. It is an opportunity for the Supreme Court to stand up for common sense and recognize that copyright is supposed to serve the public interest, not the other way around. Let’s hope it does so.
