Reselling Textbooks: Intellectual Property Theft or Savvy Business?

Ask any student what the best part about buying textbooks for classes is and you'll probably get one of two answers: "NOTHING!" or "Getting SOME of that money back by reselling it." One resourceful student turned the common practice of reselling into a successful business practice.

Foreign student Supap Kirtsaeng purchased textbooks at a lower price from a foreign subsidiary of John Wiley & Sons, an academic textbook publisher, had them shipped to himself here in America, and then sold them at a profit. When they became aware of this, Wiley brought suit against Kirtsaeng, arguing 17 USCS § 106(3) barred Kirtsaeng's sale of the textbooks. Kirtsaeng appealed, arguing "First Sale" protects his business. The doctrine of "first sale" allows the owner of a lawfully acquired copy of a work to do anything they wish with it after purchase, including reselling.

The case ultimately reached the Supreme Court who overturned the verdict in favor of Wiley and the $600,000 awarded to them. The Supreme Court ruled that the doctrine of "First Sale" applies even to copyrighted material that is manufactured abroad, believing this protects consumer rights.

Was the Supreme Court correct in allowing Kirtsaeng's actions to fall under the "first sale" doctrine? Will this open a "can of worms" like the dissenters believe? Does this ruling make importation privilege in copyright law outdated and insignificant?

It is too early to tell whether this will cause the fallout that some judges fear, but "first sale" hasn't caused the downfall of companies in the past. There are other laws and precedents that have and will continue to prevent the economic fallout and "parade of horribles" of which the dissenters of the opinion alluded. And, as we all know, case law is not set in stone and it may only be a matter of time before one of the dreaded "horribles" raises its head and brings to light reasons to rethink Kirtsaeng's ruling.

Kirtsaeng v. John Wiley & Sons, Inc., 2013 U.S. LEXIS 2371 (2013)
Counsel:
E. Joshua Rosenkranz, petitioner
Theodore B. Olson, respondant