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eBay Seller's Copyright Fight Goes to US Supreme Court

By Edward Tan, JD on April 17, 2012 | Last updated on March 21, 2019

Lawyers for a Thailand native will try an eBay copyright case before the U.S. Supreme Court.

The high court has agreed to hear the case of Supap Kirtsaeng, a University of Southern California PhD mathematics candidate, Reuters reports. Kirtsaeng has been accused by publisher John Wiley & Sons of reselling its textbooks on eBay in violation of U.S. copyright law.

Depending on where the Supreme Court falls in this case, the things users can sell on eBay could change forever.

That's because this will be the first time that the court will address whether the first-sale doctrine in the Copyright Act applies to "gray market" goods.

Unlike in the black market, gray market goods are legally made and purchased overseas, usually at a lower price. They're then imported into the U.S. and sold for profit, often on sites like eBay.

The legality of gray market goods have been debated for quite some time. In December 2010, the Supreme Court failed to decide the issue after a 4-4 deadlock.

That case involved a dispute between Costco and Swatch Group, in which the former was selling imported watches manufactured by the latter. Justice Elena Kagan opted out of breaking the tie because she was involved in the case while working as U.S. solicitor general.

The issue in Kirtsaeng's case is identical.

Kirtsaeng arrived in America in 1997 to complete his undergraduate degree at Cornell University. When he got into USC, he asked friends and families in Thailand to send him textbooks so that he could sell them on eBay to help pay his tuition. John Wiley & Sons got wind of his actions and in 2008, secured a $75,000 jury award for each of the books Kirtsaeng sold.

If the court finds the first-sale doctrine applies to gray market goods, American eBay sellers would have a new legal avenue for income. At the same time, manufacturers could see their earnings undercut.

Kirtsaeng's attorneys are set to try this eBay copyright case before the Supreme Court this upcoming term. A decision will likely follow early next year.

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