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First Sale Doctrine in Danger? SCOTUS to Review Grey Market Books

By Robyn Hagan Cain | Last updated on

Justices Scalia and Kagan may have been hunting antelope over the weekend, but next week the ideological opposites will be hunting for answers. The court is set to hear two cases when it returns for the November sitting next Monday: Clapper v. Amnesty International USA and Kirtsaeng v. John Wiley & Sons, Inc.

The latter case involves a topic near and dear us: Selling stuff.

You see, we've been living in small spaces with big city rent for years. And we tend to buy a lot of stuff. But we don't want to end up on Hoarders, so we actually get rid of the things we no longer use -- books, clothes, gadgets. You get the idea.

Generally, the law permits us to sell unwanted items -- even copyrighted items -- under the first sale doctrine, which says the owner of a lawfully-purchased copyrighted work can resell it without limitations imposed by the copyright holder.

Reselling rights, however, could be in danger.

In this case, it all started with Supap Kirtsaeng, a student from Thailand who was studying in the U.S.

Kirtsaeng tried to save money on his textbooks by asking his friends and family back home to purchase the books at lower foreign prices and ship them to the U.S., according to The Hollywood Reporter. Then, Kirtsaeng began selling the textbooks on eBay. He made $37,000 before John Wiley & Sons, a textbook publisher, sued to stop him.

Wiley claimed the first sale doctrine doesn't apply to products that are made abroad. In the latest decision in the case, the Second Circuit Court of Appeals agreed. In April, the Supreme Court granted certiorari to review the matter.

The principal question in Kirtsaeng is whether the first sale doctrine applies to copyrighted works produced outside of the United States, but imported and resold in the U.S. If the Supreme Court affirms the Second Circuit, it could mean that the copyright holders of anything made outside America would have to give you permission to sell it, The Wall Street Journal reports. That potentially means restricting eBay and Craigslist sales. It could even impose library lending limits on books published overseas.

This case may not be a hot-button, headline-grabbing civil rights issue, but it's a big deal for people who like to make deals on their old stuff.

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