Law Librarians Seek To Uphold Copyright Act’s “First Sale Doctrine”

Cleveland-Marshall College of Law Library, as a member institution of the American Association of Law Libraries (AALL),  notes this recent legal development:

AALL has joined with Public Knowledge, Electronic Frontier Foundation, the Special Libraries Association, and U.S. PIRG on an amicus brief in the U.S. Supreme Court case of Kirtsaeng v. Wiley & Sons, Inc. (docket 11-697), supporting the petitioner, Supap Kirtsaeng. This case has potential implications for the first sale doctrine and libraries’ ability to lend books and other materials that are manufactured abroad.

Specifically, this case involves Section 602(a)(1) of the Copyright Act, which prohibits the importation of a work without the authority of the copyright’s owner, and Section 109(a) of the Copyright Act, which allows the owner of a copy “lawfully made under this title” to sell or otherwise dispose of the copy without the copyright owner’s permission.

U.S. Supreme Court granted certiorari on April 16, 2012.  In doing so, the Court returns to an issue that is addressed in 2010, Costco Wholesale Corporation v. Omega, S.A.

In Costco, the Court split 4-4.  This 4-4 ruling meant that Costco could be liable for copyright infringement for selling foreign-made watches without the manufacturer’s authorization. However, because there was no majority decision, this ruling did not set a nationwide precedent and solely affirmed a lower court’s ruling.  The lack of a majority was due to Justice Elena Kagan: she was recused from this 2010 case, as she had worked on it when she was solicitor general.

This new copyright case gives the Court another opportunity to sort out the split among federal appeals courts over the “first-sale doctrine”