By Andrew Albanese
Librarians and book re-sellers say their core activities are now in question after the Second Circuit Court of Appeals on August 15 upheld a lower court decision finding that the “First Sale” doctrine in U.S. copyright law—the provision that enables libraries to lend and consumers to re-sell books they’ve lawfully purchased—does not apply to works manufactured outside the U.S. While the verdict stands as a major victory for the publishing industry, which has long fought the “illegal importation of foreign works,” especially textbooks, critics say the broad decision goes too far, and could harm libraries and encourage the outsourcing of jobs.
The ruling comes in the case of John Wiley & Sons, Inc. v. Supap Kirtsaeng, in which Kirtsaeng, a Thai-born U.S. student was accused of importing and re-selling foreign editions of textbooks, made for exclusive sale abroad, in the U.S. market via online service eBay. In its verdict, a three-judge panel of the Second Circuit affirmed by a 2-1 margin that Kirtsaeng “could not avail himself of the first sale doctrine,” because language in the statute says that products must be “lawfully made.” The court ruled that those two words—“lawfully made”—limits First Sale “specifically and exclusively to works that are made in territories in which the Copyright Act is law, and not to foreign-manufactured works.”
The verdict is the second decision in a year to limit the First Sale doctrine.