If the Supreme Court is looking for a middle ground in Wiley v. Kirtsaeng, it’s going to be hard to find. That copyright case, argued this morning, could have a big impact on resale markets around the country.
It’s impossible to know from reading into oral arguments which way the court will go. Questions from the bench today show the justices are seriously concerned about the possible effects on resellers of common goods, as well as legal obstacles that could be created for museums and libraries. At one point, Justice Stephen Breyer grilled Wiley’s lawyer about how a victory for his side would avoid interfering with the sale of millions of used Toyotas.
At the same time, at least some justices are concerned with copyright owners’ right to engage in “market segmentation,” and charge different prices in different countries. As for the grad student turned book-importer who challenged that system, Supap Kirtsaeng, there wasn’t much sympathy to be found. Justice Elena Kagan casually referred to him as a “rogue” at one point.
I wrote some about this yesterday. I figured it mostly dealt with books.
But as seen by the questions that were asked, it could also affect almost anything we might want to sell. If Wiley wins, the auto makers might be able to tell us whether we could sell a used car. Same with TVs or pretty much anything with parts made outside the US.
Here is Breyer:
“Imagine Toyota, right?” said Breyer. “Millions sold in the United States. They have copyrighted sound systems. They have copyrighted GPS systems. Under [Wiley’s] reading, the millions of Americans who buy Toyotas could not resell them without getting the permission of the copyright holder of every item in that car which is copyrighted? Am I right or am I wrong? “
The right of first sale might be gone and we really would not own anything. The corporations we buy things from would have absolute rights to dictate what we could do. They could say that we could only sell our cars through the dealers they determine. They could say that repairs can only be done at their shops.
Craigslist and eBay would pretty much be out of business.
It would also affect libraries. They could be vulnerable to lawsuits from copyright holders just for loaning out books without the holder’s permission. Without permission from the artist, museums might be liable to being sued for displaying a work of art.
Here is what the lawyer trying to get this horrible interpretation made into law said:
“If you’re going to use the product… in a way that’s contemplated by the copyright laws, maybe it’s required that you actually comply with the copyright laws by going to the owner of the copyright and saying, look, here’s what I propose to do, can I have a license to do this? It’s a nonprofit, it’s a museum.”
So, a museum would have to get direct permission fro each artist in order to display that work to the public. Isn’t that special?
All depending on what decision the Supreme Court makes. I am not confident that the customer will even enter into their decision. But I hope so.