Book publishers have convinced the US Second Court of Appeals to issue a ruling that is grotesquely hostile to first sale doctrine and seriously makes one question what the hell they think they're going to accomplish. The case at hand is John Wiley & Sons Inc. v. Supap Kirtsaeng
If you understand all this stuff feel free to pause here and read that. For those who don't, let's start with the basics: "First Sale Doctrine" is an exemption first recognized about 100 years ago in the US to the limited monopolies of copyright law. The doctrine says that if you have a copy of a work that you got legally, then you have the right to resell it after you're done with it. This is particularly relevant for things like books, movie DVDs, game cartridges and so on, all of which have large and reasonably healthy secondary markets both physical and online. In the EU and many other parts of the world this right does not exist; the idea that "I can do what I want with my stuff so long as it's legal" seems to be uniquely American.
First sale doctrine has been under attack for some time in the US. Last year a divided (4-4) US Supreme Court affirmed a Ninth Circuit decision, in a case called Costco v. Omega, that first-sale applied only to things made and distributed in the US. Since the Court was equally divided - Justice Kagan recused herself - the 9th ruling stood but no national precedent was set. Now the Second Circuit has upheld this principle.
The problem? Well, let's see. For starters, do you know if your book was printed in the US or Canada? If it was printed in Canada, be sure not to list it on eBay or Half.com and make sure it doesn't show up at your yard sale or get donated anywhere. Did you order from Amazon UK? If so, you are now not allowed to resell that book. Are you a library that stocks UK authors? So sorry, you can no longer lend those books out unless you went to the trouble and expense of getting the publisher's permission for each and every item.
For your non-US books, do you know whether the listed publisher still has the rights in that book? Did the author's contract expire or get terminated? Did they move to another publisher, and if so did that publisher pick up rights to the author's back catalog when they started publishing her newest works?
You can see where this is headed. Neveryoumind about orphan works - just be sure you're not the kind of dastardly person who GIVES books away to libraries like those whose collections have been damaged by the recent flooding in NY, CT or VT - all states covered by the Second Circuit. Because if you do that now, you're breaking the law; I imagine that libraries that ask for donations are probably guilty of contributory infringement, too.
And if you're a company that does printing work for books or comics or magazines, or your company manufactures those DVDs or cartridges for games in the US, I'd start looking for a new line of work pronto. Because, really, there's not a single reason that any publisher would want to have their materials made in the US anymore when just having them shipped in from overseas allows them to escape that pesky first-sale stuff. Which brings me back around to my original question - what, exactly, do John Wiley think they're going to accomplish here? Do they think they're going to exterminate used book stores? Kill the comic resale market? And to whose benefit?
Can you imagine a time when stores display books with little tags like you see in art museums. "On loan from the permanent collection of Alan Wexelblat"? At least as an individual purchaser I think I'm still allowed to lend friends my books. I think. For now.
(h/t to Doug Pardee for the pointers, and to Dano for the Subject line of this post)