Wednesday, October 10, 2012

Right to sell your stuff, Day Two

Okay, so how would the facts have to be for Kirtsaeng to win, lose or draw on his defense of the infringement suit, in the trial court?

CASE ONE - Best facts for the defendant

Let's suppose the facts were like this -

  1. the foreign version of the book is physically indistinguishable from the domestic one.
  2. The marketer bought his books through intermediaries in the foreign country.
  3. The printer had no idea where the books were going.
  4. The marketer stated in his ebay ads that the book was pre-owed but never read.

Given facts like these, K should have won hands-down on all counts. He would have received the books legally, through distribution channels that had no legal or contractual restrictions, and would have sold them truthfully.

Given facts like these, the case should have been dismissed with prejudice.

It wasn't, though.

CASE TWO - Bad facts for both sides

On the other hand, suppose the facts are something like this -

  • The foreign book has slightly different content.
  • The foreign version of the book contains a notation that it is for use in a specific region.
  • The foreign printer had no idea where the books were going.
  • The marketer claimed in his ebay ads that it was a "new" book.
  • The marketer failed to disclose the differences in content or any possible legal restrictions on the book.

Given those facts, K has clearly violated some laws and or torts - primarily fraud against the students in promising one thing and delivering another.

The publisher should win a lawsuit based upon unfair competition, though, not on "copyright infringement."

That didn't happen, though.

CASE THREE - Best facts for the plaintiff

Now, let's look at a third possibility - let's say the facts look something like this -

  • The foreign printer had a distribution license clearly limited to a particular region, not including the US.
  • The foreign printer knew that the marketer intended to ship the books to the US.
  • The marketer knew that the printer was limited to narrow geographical distribution, not including the US.

In that case, the printer and the marketer would have knowingly conspired to breach the printer's contract allowing use of the copyrighted work.

THAT is a copyright violation.

But those aren't the facts either.


  • The book is slightly different, and clearly marked.
  • K bought the books through family and friends.
  • The foreign printer is not involved in the case.
  • No mention is made in the case of any false marketing claims.

Given the above facts, it would appear impossible for K to have violated any copyright laws. He didn't print anything, bought the books legally, had no contractual privity to the publisher, and had no duty not to compete with the publisher or not to resell the books. He bought legally produced copies of a work ion one place and sold them elsewhere.

So why did the plaintiff win against K in the lower courts? Because of one additional fact -

  • The foreign edition books are clearly marked as not legal for export outside the region of their publication.
And there's the rub. Can the words printed on an authorized copy of a book create a legal restriction on a subsequent owner? If not, why not? If so, to what degree? More analysis on Day Three.

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