Next week lawyers will go before the U.S. Supreme Court and present arguments in a case that could determine whether you have the right to resell something you own on eBay or at a yard sale.
The case is Kirtsaeng vs. Wiley, which centers on a graduate student, Supap Kirtsaeng, who bought current textbooks -- published by John Wiley & Sons -- through friends and family in Thailand and sold them online in the United States.
The publisher sued, claiming that the right of first sale did not apply because the books were manufactured overseas, and he was therefore not authorized to sell the books.
The “first sale doctrine” is a common-law concept recognized by U.S. courts for more than 100 years. A coalition of retailers, libraries, educators, Internet companies and associations is worried that a ruling for the publisher in this case could eventually jeopardize that right. In the future, they say, consumers may not be able to sell goods they no longer want without running afoul of the law.
Erosion of ownership rights?
"The sudden erosion of ownership rights is becoming an alarming trend in the United States due to recent federal court decisions,” said Andrew Shore, executive director of the Ownership Rights Initiative (ORI). “Our position is simple: if you bought it, you own it, and you can resell it, rent it, lend it or donate it, and we believe the American people fundamentally agree.”
The case going before the court is far removed from the neighborhood yard sale, however. The publisher charges Kirtsaeng was basically running an import business, buying the textbooks for little money in Thailand and selling them for a large markup in the U.S., while still undercutting the price of the publisher.
ORI is concerned, however, that a decision against the right to resell a purchased product will eventually be expanded to include all types of items. For example, if you sold your old iPhone on eBay, the group says it's possible Apple would demand a cut, since it holds the copyright.
What did Congress intend?
"It is hard to conceive that Congress intended to incentivize manufacturers to move operations overseas, force American consumers to pay higher prices, make it hard for us to donate our own stuff to charity, and cripple the ability of libraries to lend books -- without saying anything like that in the law," said Marvin Ammori, a legal advisor to ORI and an Affiliate Scholar at Stanford Law School's Center for Internet & Society.
Ammori says if the high court rules in favor of Wiley's interpretation, it could be illegal for American consumers and businesses to sell, lend, or give away the things they own, but only if the company happened to have manufactured the goods overseas and put a little copyrighted logo or text on them.