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Libraries Ask SCOTUS to Reverse 2nd Cir Ruling in Kirtsaeng

By Robyn Hagan Cain on July 09, 2012 | Last updated on March 21, 2019

It’s the Second Circuit Court of Appeals ruling that could limit library lending power.

In April, the Supreme Court granted certiorari in Kirtsaeng v. John Wiley & Sons, a case examining “gray market” resale of copyrighted works.

Last week, a triumvirate of library groups, (the American Library Association, the Association of Research Libraries, and the Association of College and Research Libraries) asked the Supreme Court to reverse the Second Circuit, noting that upholding the decision could stop libraries from loaning foreign books.

The Second Circuit ruled last year that Supap Kirtsaeng violated John Wiley & Sons' copyrights when he sold cheap foreign editions of the publishers' textbooks in the United States, reports Thomson Reuters News & Insight. Kirtsaeng claimed that his sales plan was legal under the first sale doctrine.

The first sale doctrine in copyright law allows the owner of a lawfully-purchased copyrighted work to resell it without limitations imposed by the copyright holder. The main question in the case is whether the first sale doctrine applies to copyrighted works produced outside of the United States, which are imported and resold in the United States.

The Second Circuit concluded that the first sale doctrine only applies to products physically manufactured in the United States, and that to conclude otherwise would undercut 17 USC §602(a)(1), which prohibits people from buying copyrighted works abroad and importing them into the United States without the copyright owner's permission, according to News & Insight.

The LCA brief notes that more than 200 million books in U.S. libraries have foreign publishers. Jonathan Band, the attorney who wrote the LCA brief, told Publishers Weekly that the Second Circuit's interpretation of the first sale doctrine could conceivably mean that libraries cannot lend books that were printed abroad. "Not only books from foreign publishers, but American-published books that are merely printed overseas," Band explained.

Who do you think will win this battle? The libraries and resellers or the publishers?

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