On The Docket: Update – October 30, 2013

by | Oct 30, 2012 | John Wiley & Sons vs. Kirtsaeng, Policy & Law

by Jeff Owen

Yesterday the Supreme Court of the United States (SCOTUS) held oral arguments in the case of Kirtsaeng v. Wiley (case # 11-697).  We’ve previously reported on this case and issue regarding copyright law, the First Sale Doctrine, and owners’ rights.  You can read our initial article at http://tinyurl.com/9vk9sko.  The full transcript of these hearings can be downloaded as a .pdf from the ASCDI site at https://www.ascdi.com/asna/public/scotusarguments.pdf

Joe Marion, President ASCDI, sent out an e-mail to all members earlier today wherein he stated, “Reading the transcript is never a sure way of predicting what the Justices will do.  However, my overall impression based on the comments and questions of the Justices is that the Court would like to keep give owners the continued right to resell products, yet at the same time protect the rights of the trademark holders.  Justice Ginsburg started out by asking whether copyright protection ends only when an item is sold domestically or if it ends even if it is sold overseas.  Justice Breyer mentioned the unintended consequences that might occur if the Court found against the  right to resell.   Justice Kagen brought up the issue of “lawfully made [in the US]” which to me indicates that the Justice is thinking more along the lines of  stopping “counterfeit” yet allowing owners to resell goods made outside of the U.S. “

Marion continued, “The best thing that happened, in my opinion is that Malcolm Stewart, the Deputy Solicitor General for the U.S. Department of Justice who filed a brief in support of Wiley, the trademark holder seemed to reverse himself when he answered Justice Alito that the worse outcome would be restricting the resale of foreign made goods.”

Today, the Los Angeles Times published an editorial in support of the right to resell and concluded that, “The gray market may be a problem for manufacturers, but the Supreme Court shouldn’t stretch copyright law to solve it for them.”

Suffice it to say that the Court’s ruling on this case will affect us all and probably not be the last word.  No matter what the decision, we can expect many more years of lobbying from both sides to re-write the law.  Fortunately, on our side we have the newly formed Owners’ Rights Initiative (ORI).

The Owners’ Rights Initiative (ORI) is a diverse coalition of businesses, associations and organizations that have joined together to protect ownership rights in the United States. They believe in the fundamental premise that if you bought it, you own it, and should have the right to sell, lend or give away your personal property. ORI members are concerned about recent federal court decisions that have eroded owners’ rights. The initiative provides a unified voice for members to engage in advocacy, education and outreach around these important issues.

Current members in ORI as listed on their website (http://ownersrightsinitiative.org) include;

American Free Trade Association;  American Association of Law Libraries;  American Library Association; Association of Service and Computer Dealers International and the North American Association of Telecommunications Dealers (ASCDI); Association of Research Libraries;    Computer and Communications Industry Association; Chegg; CXtec; eBay; Goodwill Industries;     Home School Legal Defense Fund (HSLDA); Impulse Technology; International Imaging; Technology Counsel (ITC); Internet Commerce Coalition; Network Hardware Resale;   Overstock; Powell’s Books; Quality King Distributors; Redbox; United Network Equipment Dealers Association (UNEDA); and XS International.

Telecom Reseller was able to participate in a briefing held by ORI members earlier this month and we were impressed both by who has joined and their passion for this cause.

Stay tuned.  We will continue to bring you relevant news on this case and issue as they unfold.  For now, we expect SCOTUS to rule on the Kirtsaeng v. Wiley case sometime mid 2013.

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