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 CASE AS REPORTED

• 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.

Your Right to Sell Your Stuff is NOT in Peril

Often, a legal case will come up that seems to have implications far beyond its own scope. Usually, it doesn't.

Welcome to Kirtsaeng V John Wiley & Sons, a case on the current Supreme Court docket, reported by Jennifer Waters’ Consumer Confidential. Much of the writing on the internet about this is overwrought. For example, here and here, some of whom just parrot the headline without analysis. On the other hand, there are usually some calmer voices, such as here and here. ONE BIG HINT: When it's a supreme court question, you should first review volokh and scotusblog

"Your right to sell your stuff is in Peril!" the Internet voices scream.

No, it is not.

This case will not affect your ability to resell your used iPad.

Understand this - Supap Kirtsaeng, the defendant in the underlying case, wasn't selling one personal copy of a used book. He was in the business of importing large numbers of a foreign edition of a company's product and using these unauthorized imports to compete head-to-head with the company's domestic version of the same product. Kirtsaeng made $1.2 Million in profit from these "grey-market" import sales.

BUT WAS IT LAWFUL?

I can't tell, yet. Based on the fact that he lost in the lower courts, the current posture of the case says that it presumably was not. On the other hand, the facts as reported on several sites lead me to believe that it probably was legal. Or should have been.

The question of whether his actions constituted a crime or a tort depends upon several factors. Primarily, it depends upon

1. Under what contractual conditions the books were produced in the foreign country, and
2. Whether the foreign manufacturer was complicit in the arrival of the books in the US, and
3. Whether any enforceable legal limitations existed on the use of the foreign books in the US, after their initial sale elsewhere, and
4. How Kirtsaeng represented the books when he sold them in the US.

So, what were the facts in this case, and how do they relate to an accusation of copyright infringement?

See Part 2, tomorrow. Oh, and speaking of copyright infringement, I saw dozens of sites out there of people who cut and pasted most of Jennifer Waters’ Consumer Confidential piece. Definitely way beyond fair use, IMHO.