The U.S. Supreme Court heard oral arguments on Monday in a pivotal copyright-infringement case over whether textbooks from foreign markets can be imported to the U.S. and resold without the publisher’s permission. The Court鈥檚 decision in the case, , may have major consequences for publishers, academic libraries, museums, and others who resell, lend, or display copyrighted material made and purchased outside the United States.
The case arose when Supap Kirtsaeng, a U.S. college student originally from Thailand, re-sold textbooks that his friends and relatives shipped to him from abroad. In response, publisher John Wiley & Sons sued him for copyright infringement. Mr. Kirtsaeng鈥檚 defense centers on the first-sale doctrine, which permits the buyer of a copyrighted work to lend or resell it without permission. However, the states that the first-sale doctrine applies only to goods “lawfully made under this title,” which may or may not include foreign products. In August 2011, the U.S. Court of Appeals for the 2nd Circuit upheld a lower court’s decision that only domestic works are protected under the first-sale rule, nevertheless the Supreme Court may have a different ruling.
As the reported, much of Monday鈥檚 discussion involved what lawyers call the 鈥減arade of horribles鈥濃�攖he worst-case scenarios that could result from a ruling in favor of the publishers. For example, libraries could theoretically be prohibited from distributing foreign-made books, owners of foreign cars could be barred from re-selling them as used, and more. The publisher鈥檚 attorney stated that there might be provisions allowing for some gifts and re-sales, such as the 鈥渇air use鈥� doctrine which lets copyrighted works be reproduced if they are to be used for research, critique, or similar purposes. However, Chief Justice John G. Roberts Jr. countered, 鈥淚t seems unlikely to me that, if your position is right, a court would say, it鈥檚 a fair use to resell the Toyota, it鈥檚 a fair use to display the Picasso.鈥�
Justice Elena Kagan, considered by many to be the crucial swing vote in the case, actively questioned both sides, but did not reveal her leanings. Otherwise, the justices appear divided, according to . A ruling in the case is expected by the end of the court’s term, in June.