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US Supreme Court’s decision could impact consumers’ ability to sell their own stuff

US Supreme Court’s decision could impact consumers’ ability to sell their own stuff

The U.S. Supreme Court’s ruling in Kirtsaeng v. John Wiley & Sons Inc. could have a direct effect not only on copyright law, but also on consumers’ ability to do things as commonplace as hold garage sales, see works at a museum or buy and sell personal goods online.

The considers whether the first-sale doctrine, which limits some of the rights copyright holders have over products after an initial sale, applies to works and products created outside of the United States. If the justices rule that it does not, then the resale of everyday foreign-made products with copyrighted components could violate federal law.

“By making [products] outside of the U.S., [manufacturers could] stop people from having yard sales,” said Marvin Ammori, a First Amendment and Internet policy lawyer and fellow at Stanford Law School’s Center for Internet & Society.

Ammori said the implications of the case could be tremendous. Giving copyright holders increased control over the resale of items produced outside of the country could encourage manufacturers to produce goods in foreign countries, cause price increases due to a lack of competition from resellers and even prevent libraries from stocking materials produced abroad.

Hillary Brill, Global Policy Counsel for eBay Inc., said that a ruling making the first-sale doctrine inapplicable to foreign-produced work would give manufacturers unprecedented control over products, well beyond what was intended by copyright law.

“eBay’s position is plain and simple: If you buy an authentic good, you own it,” Brill said in a media conference call with counsel representing retailers, libraries, Internet sellers and other entities who will be affected by the case.

While the ruling would only affect works created outside of the United States, the result will be felt stateside because many goods produced overseas make their way into the U.S. commerce stream and because many fields such as art and literature are international by nature.

“If the decision below is upheld, merely hanging a foreign-made painting on the wall of a museum, buying and importing a sculpture that was created outside the country or loaning either to another institution for exhibition to the public could give rise to claims of copyright infringement,” said Stefan M. Mentzer, a partner in the New York office of White & Case. Mentzer filed an amicus brief in the case on behalf of the Association of Art Museum Directors and 28 museums.

Alexandre Montagu, founding partner at MontaguLaw in New York, said the conflict in the case is a classic example of century-old federal laws failing to keep up with changing technologies.

“The first-sale doctrine has been around since the 1909 Copyright Act,” said Montagu, noting that such things as Internet resale sites and products such as iPhones which contain copyrighted programs could not have been conceived of when the legislation was drafted. “[It] worked very well for 100 years. But suddenly it’s creating massive confusion because of the new technology.”


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