Kirtsaeng: First Sale, Libraries, Parallel Markets)

TRLN Meeting July 13, 2012Anne Gilliland—UNC

http://www.flickr.com/photos/11831132@N00/134329177 Photo by Logan Ingalls Attribution 2.0 Generic (CC BY 2.0)

Facts in Kirtsaenghttp://www.flickr.com/photos/30898003@N08/4258328532 Photo by mksavage Attribution-NonCommercial-ShareAlike 2.0 Generic (CC BY-NC-SA 2.0)

• Grad student from Thailand

• Relatives bought textbooks overseas & Kirtsaeng resold in U.S.

• Textbooks were intended for foreign market

• Liable for copyright infringement—imported without rights holder’s permission

Issue: How do Section 602(a)(1) of the Copyright Act, which prohibits the importation of a work without the authority of the copyright’s owner, and Section 109(a) of the Copyright Act, which allows the owner of a copy “lawfully made under this title” to sell or otherwise dispose of the copy without the copyright owner’s permission, apply to a copy that was made and legally acquired abroad and then imported into the United States?(http://www.scotusblog.com/case-files/cases/kirtsaeng-v-john-wiley-sons-inc/)

Supreme Court Granted Certiorari

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A Few Brief Copyright BasicsPhoto by Kristen Taylor http://www.flickr.com/photos/80985143@N00/3584352662 Attribution 2.0 Generic (CC BY 2.0)

• “Bundle of Rights– Reproduction– Make derivative works– Distribution– Public performance– Public display – Public performance through a

digital audio transmission • Limitations• Wide Variety of Things

Can be Copyrighted

Physical Ownership vs. Ownership of Copyrighthttp://www.flickr.com/photos/47691521@N07/4371001458 Photo by opensource.com http://www.flickr.com/photos/47691521@N07/4371001458

• First sale doctrine• Codified in Section

109– Libraries get special

treatment

• Doctrine of exhaustion

Section 602:Infringing Importation or Exportation

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• Importation of copyrighted work “without the authority of the owner…under this title…is an infringement.”

• Circuits split on how to interpret

• Libraries get limited special treatment under 602

Parallel Markets, Quality King, Costco

• Parallel markets have increased

• Quality King: “round trip” sale & distribution limited by Section 109

• Costco—Supreme Court tied in 2010

Library Copyright Alliance Amicus Brief

• Wording & meaning of the statutes

• Policy concerns• Other alternatives

(none of them great)

Is the Sky Falling?http://www.flickr.com/photos/52039388@N08/5139149403 Photo by Alexander Vaughn Attribution 2.0 Generic (CC BY 2.0)