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U.S. Supreme Court

ABA Amicus Brief Sides with Textbook Publisher in Infringement Suit over eBay Resales

Posted Oct 12, 2012 11:31 AM CDT
By Debra Cassens Weiss

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The American Bar Association is siding with a textbook publisher that sued for infringement when a California grad student purchased its books cheaply overseas and then resold them on eBay for a profit.

In an amicus brief (PDF), the ABA urges the U.S. Supreme Court to affirm a decision for publisher John Wiley & Sons by the New York-based 2nd U.S. Circuit Court of Appeals. The appeals court held that a copyright owner retains a right to control the importation of its goods when they are made and distributed abroad, an ABA press release explains.

Jurors had awarded $600,000 for the infringement, but at the publisher's suggestion, the trial judge ordered student Supap Kirtsaeng to instead turn over his golf clubs, computer and printer, according to Kirtsaeng's cert petition (PDF).

At issue in the case is the Copyright Act’s first-sale doctrine, which holds that copyright owners can’t ban resales of their products. Kirtsaeng claims the doctrine protects him from an infringement suit by the textbook publisher.

The ABA argues that the doctrine doesn’t apply when the goods are manufactured outside the United States. “Limiting the availability of the first-sale defense to goods manufactured domestically best comports with the text and structure of the Copyright Act,” the ABA argues. A contrary ruling would also upset the settled expectations of copyright holders, the ABA says.

MarketWatch examines the possible consumer impact of the case, set to be argued on Oct. 29. Its story begins this way: “Tucked into the U.S. Supreme Court’s agenda this fall is a little-known case that could upend your ability to resell everything from your grandmother’s antique furniture to your iPhone 4.”

SCOTUSblog has the links to numerous amicus briefs and other court documents in the case, Kirtsaeng v. John Wiley & Sons.

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