The Supreme Court Gets It Right on Copyright

Excellent coverage by Ronald Mann over on the SCOTUS Blog of an even more excellent decision by the court in Kirtsaeng v. John Wiley & Sons, Inc. While the whole analysis is worth a read, here is the good news in plain English:

The Court at last seems to have reached a consensus on a seemingly intractable problem of copyright law: whether a U.S. copyright holder can prevent the importation of “gray-market” products manufactured for overseas markets….

In Kirtsaeng v. John Wiley & Sons, the Court considered the “first sale” doctrine of copyright law. This is a rule that means that when a publisher sells a copyrighted work once, it loses any right to complain about anything later done with that copy. This is the rule that makes it okay to resell a used book to a used-book store, and for that store in turn to sell used books to its customers.

The issue in Kirtsaeng was whether the first-sale doctrine applies to copyrighted works manufactured overseas. Kirtsaeng bought textbooks in Thailand, where they are cheap, brought them to the United States, and resold them at a large profit. The lower courts said he couldn’t do this, and ordered him to pay damages to the publisher (John Wiley). The Supreme Court disagreed. The Justices said that the first-sale doctrine applies to all books, wherever made. So even if you buy a book made in England, you can resell it without permission from the publisher.

Now that the reselling of these kinds of books is unequivocally legal in the US, I expect we’ll see a host of interesting new tactics from students in their ongoing arms race against the publishers. Between this ruling and the ever growing impact of OER, it feels like it’s getting harder to be a traditional publisher. Don’t quite cry for Pearson yet though – “In 2011, Pearson increased sales by 4% in headline terms to £5.9bn and adjusted operating profit from continuing operations by 10% to £942m.”

We’ve still got a lot of work to do.

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