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September 9, 2011

Silly People, Books Are For Reading

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Posted by Alan Wexelblat

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 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)

Comments (3) + TrackBacks (0) | Category: Laws and Regulations


1. Crosbie Fitch on September 10, 2011 3:55 AM writes...

Alan, Ray Bradbury sometimes wrote future fact instead of futuristic fiction, e.g. Fahrenheit 451.

As I've often said (because it's obvious), copyright will get far worse before it gets abolished.

We need not wonder at the cartel's futile efforts to avert their doom, but at the people's ongoing tolerance for the egregious perpetuation of this 18th century instrument of injustice.

It's a Milgram experiment on a global scale, but the people are both electrocutor and electrocuted, at the orders of the corporate state. What Milgram demonstrates is that the electrocutor absolves themselves of responsibility for the injustice. The consequence is not pretty when real rather than imagined volts are involved...

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2. Billy on September 12, 2011 10:59 AM writes...

This is a horrible precedent, but it is not as bad as the write-up makes it seem.

A book printed and published in a foreign country can't be imported into the U.S. without the publisher's permission. However, even if the publisher does all printing and publishing out-of-country, they will still want to sell copies in the U.S. Once a copy is imported through the publisher's authorized channels and sold in the U.S., the first sale doctrine applies even if it was printed and published abroad.

So no importing of copies from overseas (allowing publishers to continue price discrimination), but it doesn't matter where the copy you buy at the local book store was printed and published; if it was imported through the publisher's authorized channels, first sale applies.

Libraries generally buy through publisher's authorized channels, so they are OK.

Used book stores should be OK selling foreign published and printed books too (as long as they are editions that had at least some official U.S. distribution).

Again, horrible precedent, but not as bad as it is was made out to be. Most foreign published books will still be covered under first sale since they were imported to the U.S. using the publisher's official channels. As long as it remains the publishers' obligation to track down those that aren't and we don't end up in a situation where used book stores/libraries/private citizens are required to police every single book under penalty of ridiculous liability (I admit, not that far fetched, unfortunately), we are OK.

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3. Doug on January 23, 2012 11:25 AM writes...

Billy is incorrect. The 2nd Circuit Court's ruling specifically addresses this question, and found no basis in the law for the "legal importation" exemption. They ruled that only books published under US jurisdiction are subject to the First Sale doctrine; foreign-printed books aren't, no matter how they got into the US.

The specific wording from the ruling (§ 109(a) is the First Sale doctrine):

"While the Ninth Circuit in Omega held that § 109(a) also applies to foreign-produced copies of works sold in the United States with the permission of the copyright holder, that holding relied on Ninth Circuit precedents not adopted by other courts of appeals. Accordingly, while perhaps a close call, we think that, in light of its necessary interplay with § 602(a)(1), § 109(a) is best interpreted as applying only to copies manufactured domestically."

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