Discussing the intellectual “property” wars the other day, I pointed out that defenders of copyright want to restrict the circulation of material things, not just abstract bits of cyberspace. In a case decided this week, the United States Supreme Court struck down an even more extravagant claim – that a copyright holder can prevent resale of artefacts, even when there’s no copying involved.
The case is Kirtsaeng v. John Wiley and Sons. Mr Kirtsaeng, who lived in the US, got his friends and family in Thailand to buy textbooks there and ship them to him. He then sold them at American prices, reimbursed the purchasers and pocketed the difference.
The publishers claimed that even though they had authorised publication and sale of the textbooks in Thailand, they were entitled to prevent Kirtsaeng from reselling them – that his entitlement to resell his own books only applied if they were published in America, not overseas.
Remarkably enough, the district court and the Second Circuit court of appeal accepted this outlandish claim. Kirtsaeng took it to the Supreme Court, supported by such organisations as the American Library Association and the Association of Art Museum Directors, who had nightmare visions of having to obtain further permissions to lend or exhibit materials they had bought overseas.
In a six-three decision, the Supreme Court put the publishers in their place. Justice Stephen Breyer, speaking for the majority, said that as a result of the decision
A publisher may find it more difficult to charge different prices for the same book in different geographic markets. But we do not see how these facts help Wiley, for we can find no basic principle of copyright law that suggests that publishers are especially entitled to such rights. (p. 31)
Copyright, as its name suggests, is about copying. But here there was no copying: Kirtsaeng was not running off additional copies of the same book. He was selling complete title to books that had been lawfully acquired from their copyright holder. But the publishers want to have it both ways, making money from selling books but retaining control of them after they’ve been sold.
Let’s hope this is the first step towards reining in some of their privileges and returning to consumers the control over the things they’ve paid good money for.