The Supreme Court issued a decision today that is a major win for everyone who relies on copyright law’s “first sale” doctrine — including the millions of Internet users who have flocked to Craigslist, eBay, and similar online tools to buy, sell, and “freecycle” all kinds of stuff.
The case, Kirtsaeng v. Wiley, effectively asked the Court to consider whether copyright owners should fully control all downstream distribution of copyrighted items manufactured overseas. As CDT and technology industry allies explained in our legal brief in the case last summer, giving copyright owners this kind of indefinite stranglehold on foreign-made goods would be disastrous for everything from yard sales to libraries to the thriving online resale markets that are empowering individual Internet users and small businesses. It would mean that, before you could sell or even lend a legally purchased book (or DVD, or toy with a copyrighted logo, or device with built-in software, etc.), you would have to get the copyright holder’s permission. Think about that. How many goods are manufactured abroad these days? Do you even know which of the items you supposedly own were made abroad? Yet the Second Circuit Court of Appeals, in its prior ruling in the Kirtsaeng case, had held that the place of manufacture is what matters. The first sale doctrine — the core enabler of libraries, secondary markets, and your ability to lend your legally-purchased DVD to a friend — simply would not apply to foreign-made goods.
Fortunately, the Supreme Court saw the absurdity of such a result. In clear and decisive terms, today’s decision confirms that, once you lawfully acquire a book or album or toy, you own it and can re-sell, lend, or give it away as you please. You don’t have to try to determine where is was printed or manufactured before you put it up on Craigslist or eBay. As the Court said, imposing a place-of-manufacture restriction “would threaten ordinary scholarly, artistic, commercial, and consumer activities” and carry “intolerable consequences.” These are the reasons CDT participated in the legal brief last summer, and we are very pleased to see the Court agree. Today’s ruling is an important win.
