In all the hype of the election, the rest of the government churned on, doing what they do. In particular, the Supreme Court began its latest session on the first Monday of October.
One case I found particularly interesting was argued on Oct. 29, Kirtsaeng v. John Wiley & Sons Inc.
The Kirstaeng case is the type that you often see at the Supreme Court. Because of the sausage-making style of our legislative branch (grind up everything and throw it in), occasionally a law will have provisions that conflict. In this case, the conflicting laws are portions of the copyright law.
Section 602 prohibits the importation of copyrighted material. Section 109 allows lawful purchasers of copyrighted material to sell their copy.
So I don’t lose you in a bunch of legal jargon, let me tell you about my brother, Matt. Matt has always had an entrepreneurial streak. It first manifested itself while he was attending Weber State University. He found he could buy textbooks off the Internet for less than what the bookstore would pay him for used books. He bought them and sold them back to the bookstore for a profit, increasing the number of used books available for other poor college students and making himself less poor in the process.
The unhappy participant in this exchange is the copyright holder of the textbooks my brother was buying and re-selling to the bookstore. Every used book re-sold by the bookstore was one less new book that was sold.
Now, even though I’m more than 25 years from my undergraduate days, I still feel the pain from the high costs of textbooks and don’t have a ton of sympathy for the textbook publishers, who made sure new titles would have to be sold by issuing new editions with minor changes. Yet, the textbook publisher also has the right to profit from its copyright.
The law is all about drawing boundaries and defining our respective rights. Often, the way the lines are drawn creates opportunities for one side while penalizing the other. Who is right depends on which side of the law you are on or want to be on.
Which brings us back to the Supreme Court and Mr. Kirstaeng. Mr. Kirstaeng was a college student in America, but was from Thailand. He found that the same textbooks he was using in the United States could be bought much more cheaply back home. His family would visit bookstores in Thailand, buy the books and ship them to him at school to re-sell.
After making more than $100,000 in profits selling the English/Thai fusion textbooks, the publisher John Wiley sued, citing Section 602 of the copyright law saying you can’t import the books without our permission. Kirstaeng countered that he was only selling books he legally owned under Section 109, which is allowed.
The same issue was before the Supreme Court in 2010, but Justice Kagan sat with a conflict of interest and the case ended in a 4-4 tie. In that case, Costco had lost the right to sell discounted Omega watches it purchased overseas, because the logo was copyrighted and couldn’t be imported under Section 602, even though legally purchased by Costco.
I’m not sure how the case will turn out, but before the court decides, taking the book you bought overseas in the airport to read on the plane to a used bookstore and selling anything imported and copyrighted at your garage sale, secondhand store or on eBay could be a copyright law violation. We will have to wait to see where the Supreme Court draws the line.
E. Kent Winward is an Ogden attorney. He can be reached at firstname.lastname@example.org or 801-392-8200.