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First sale doctrine survives US Supreme Court

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Dead tree books have kept one of their few advantages over e-books, with the US Supreme Court upholding the first sale doctrine, which states that the publisher's exclusivity over a book ends with its purchase.

The case was brought by John Wiley & Sons against Thai student Supap Kirtsaeng, who had noticed that textbooks in his home country were so much cheaper than in the US that he could create a sideline getting relatives to buy the books and send them to him in America for resale on eBay.

Wiley had previously and successfully argued in lower courts that the first sale doctrine only applied to books that were printed on America's shores, and that Kirtsaeng was therefore violating its exclusive license to import the books. As The Register previously noted, the US Supreme Court action reached far beyond books, since it was relevant to all copyright works.

In its 74-page judgement (PDF), the court has decided 6-3 that Kirtsaeng is, indeed, protected by the first sale doctrine.

The judges decided that Section 109 of the US Copyright Act do not impose geographical limitations on the doctrine: the textbooks in question were legally printed, albeit beyond America's borders, under license from Wiley. By contrast, the judgement states, “The geographical interpretation bristles with linguistic difficulties … Indeed, §602(a)(2) makes foreign-printed pirated copies subject to the Copyright Act.”

In the majority ruling, Justice Stephen Breyer noted that accepting the contrary argument, that Wiley could assert different rights over a book printed outside the US, “could prevent a buyer from domestically selling or even giving away copies of a video game made in Japan, a film made in Germany or a dress (with a design copyright) made in China.”

In an argument that will raise a bitter laugh from non-US buyers of products like business software, games and computers, Wiley had put forward an altruistic argument to support its right to enforce geographical rights over its books: without a decision in its favour, it would be unable to supply cheap books to developing countries.

Deciding in favour of Wiley, the court said, would mean “a publisher such as Wiley would be free to print its books abroad, allow their importation and sale within the United States, but prohibit students from later selling their used texts at a campus bookstore.”

The Register notes that this decision has no particular relevance to resale of purely digital content, such as is being fought in the ReDigi case. Digital content is only ever "sold" under license, which gives the vendor much more power than is conferred under copyright. ®

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