The Supreme Court recently ruled in the case of Kirtsaeng v. John Wiley & Sons, Inc. (Docket No. 11-697) that the copyright “first-sale” doctrine trumps a copyright holder’s right to control distribution of products embodying copyright protected material. The decision has received a fair amount of attention in the legal sphere but less so in the broader media, which is unfortunate considering how much copyright law impacts the every day lives of everyday people. The impact of copyright law on our content driven, 24/7 media culture is fairly obvious in many ways, but most people don’t realize that copyright law can be and is used to control the flow of physical goods that don’t fit the traditional copyright paradigm. Recall that the Kirtsaeng decision resolves a question the Supreme Court first considered (but did not definitively decide) in the case Omega S.A. v. Costco Wholesale Corp. in which Omega sought to exclude wristwatches lawfully purchased in Europe from resale in the U.S. by asserting a copyright claim in a design on the back of each watch. Copyright protection is available for (among other things) literary, pictorial and graphical works such as the instruction and training manuals and packaging materials that accompany physical goods. Excluding the copyrighted packaging has the effect of excluding the packaged product as well.
So how does the Kirtsaeng decision change this? Some background first: Wiley, is of course a publisher of global reach and a more than 200 year history which includes the works of Baltimore favorite Edgar Allan Poe but which more recently focuses on academic, technical and professional publishing including many textbooks. Wiley publishes considerably less expensive but very similar editions of its textbooks in overseas markets. Read More