Supreme Court to Determine True Length of the Long Arm of Copyright

04/17/12

On Monday, the U.S. Supreme Court announced that it would hear a case on an issue it failed to determine in 2010, namely whether U.S. copyright law applies to copies made and acquired abroad and then imported into the country.


The legal issue will impact the ‘gray market’ where billions of dollars of trademark protected or copyrighted goods are imported into U.S. via ‘alternative’ routes.

The decision would also test the reach of the first-sale doctrine of the Copyright Act by which the owner of a lawfully made copy can sell or transfer the ownership of the goods without permissions of the original copyright holder.

The Supreme Court would be reviewing a judgment by the 2nd U.S. Circuit Court of Appeals in New York that held a foreign-made copy cannot be resold within the United States without the original copyright owner’s permission.

Previously, when the same issue came up before the Supreme Court in a case between Costco and a Swatch Group unit, the court was tied 4-4 and failed to say either yay or nay.

In the present case, Kirtsaeng v. John Wiley & Sons, No. 11-697, before the Supreme Court, a Thai student had relatives purchase books printed in Asia by the Asian subsidiary of John Wiley & Sons and send them to him in U.S. The student Supap Kirtsaeng, would then sell the textbooks on eBay to cover his education costs.

Wiley & Sons sued Kirtsaeng in 2008 for copyright infringement, claiming a loss of $37000. A jury imposed damages of $75000 on the student for each of the eight text books purported to have been sold by him. The appeals court upheld the verdict.

The Supreme Court would now hear the issue and arguments during the next term in October.

The student, Supap Kirtsaeng, came to the U.S. from Thailand in 1997, attended Cornell University, and then was accepted into the PhD program for mathematics at the University of Southern California. No other illegality or irregularity is known about the academically successful student who took the method of procuring course textbooks from Thailand and selling them on eBay to subsidize his education costs.

However, the instant case is not the face of the ‘gray market’ where not students bent upon gathering living costs, but large international corporations bent just on profit, use the loopholes in copyright law to run a multibillion dollar market.