U.S. Supreme Court

Supreme Court Grants Cert in Copyright Case Involving EBay Sales of Texts Bought Overseas

After splitting 4-4 in a case involving discounted Omega watches, the U.S. Supreme Court is revisiting copyright protections for gray market goods in a case accepted today.

This time the case involves discounted textbooks purchased cheaply overseas then resold in the United States, SCOTUSblog reports. The case will be heard next term.

Supap Kirtsaeng claims the Copyright Act’s first-sale doctrine protects him from an infringement suit by textbook publisher John Wiley & Sons. The doctrine holds that copyright holders can’t stop the resales of their products.

The 2nd U.S. Circuit Court of Appeals ruled against Kirtsaeng, holding that the first-sale doctrine doesn’t apply when goods are made in a foreign country, SCOTUSblog says. The New York-based appeals court upheld a $600,000 judgment against Kirtsaeng for selling imported John Wiley textbooks on eBay when he was a grad student in California. Kirtsaeng grossed $37,000 on the John Wiley sales.

Justice Elena Kagan recused in the prior case involving Costco’s overseas purchase of Omega watches. Costco was able to sell an Omega watch for $1,299, despite a suggested retail price of $1,995 because it bought watches manufactured abroad. The Supreme Court split left intact a federal appeals court ruling in favor of Omega.

The cert petition (PDF) in the new case, Kirtsaeng v. John Wiley & Sons, says the Supreme Court split indicates the difficulty of the issue. “There can scarcely be a surer indication that an issue is cert-worthy than when this court grants certiorari to resolve the issue, but splits 4-4, as this court did in Costco Wholesale Corp. v. Omega,” the petition says.

Prior coverage:

ABAJournal.com: “Supreme Court Split Leaves Intact Ruling Against Costco in Copyright Dispute”

ABAJournal.com: “Costco Copyright Case Pending Before Supreme Court Has Internet Impact”

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