International First Sale is upheld

The decision in the Kirtsaeng v. Wiley case was released this morning, and the outcome is wonderful for libraries.  I have not had the chance to read the whole opinion yet, but the upshot is that the Second Circuit rule that said that First Sale applied only to materials manufactured in the United States was reversed.  The Supreme Court majority appears to have ruled that First Sale applies to all non-pirated goods — that is, all works that are originally manufacture under authority of the rights holder in a way that would entitle them to protection under U.S. law.  In other words, if the work can be protected by copyright in the U.S., it is also subject to the rule in the U.S. that allows library lending and second-hand sales.

The opinion is here.

It appears that the Court took very seriously that “parade of horribles” that were suggested if they upheld the Second Circuit — libraries would be unable to lend some materials without a license from publishers., student could be prevented from buying or selling second-hand textbooks, etc.  According to the Court, these were too distressing, and too likely to occur.  Furthermore, the Court held that a “non-geographical” reading of the language of First Sale in section 109 of the Copyright Act is a more sensible construal of the words that are actually used.

It seems that libraries have really ducked a bullet here.  Business as usual is the way forward, for which we must be grateful to the Supreme Court.  We probably should also be prepared to see this issue come before Congress, so we will likely again be called upon to defend the value of what we do and the need to have the law, at least, not step in the way of that very important work.

8 thoughts on “International First Sale is upheld”

  1. So, do publishers and other content owners hit up Congress right away for a fix, or does this get worked into the complete overhaul that Maria Pallante has been calling for recently?

  2. I’m intrigued that the vote was 6-3, even though Omega was 4-4. Someone must have switched sides.

    1. You are right Tim. One of the extra two votes clearly came from Justice Kagan, who recused herself in the Omega case. And we cannot know who provided that sixth vote, since the Omega decision was per curium, with no written opinion and no indication of who was on which side of the equal split.

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