Rare Book Monthly

Articles - April - 2013 Issue

Booksellers Win Right to Resell Secondhand Books in U.S. Supreme Court Decision

Scseal

Seal of the Supreme Court.

In a major case that pitted used book sellers, libraries, museums and other retailers against book publishers, the U.S. Supreme Court came down squarely on the booksellers' side. The Court ruled that publishers may not use copyright law to prevent the owners of used books published abroad from reselling, loaning, or giving them away. You may not have realized this was even an issue, but had the lower court rulings been upheld, you might have found yourself on the losing end of a lawsuit for such behavior. No wonder such organizations as Powell's Books and the American Library Association banded together to fight this case all the way to the Supreme Court. It took an unusual coalition of Supreme Court justices, three liberals and three conservatives, to win this decision 6-3 for the booksellers and their allies.

Technically, the winner in this case was one Supap Kirtsaeng. Kirtsaeng was a student from Thailand who came to America to study at Cornell. When he went to purchase his schoolbooks, he noticed they were much more expensive in America than in Thailand. He also realized that the books were essentially the same. Kirtsaeng had good business instincts. He called the folks back home in Thailand and asked them to buy a bunch of textbooks and ship them to him. Kirtsaeng then put them up for sale, saving his student customers a bundle while making a nice profit for himself.

Publisher John Wiley and Sons was not amused. Their Thai books are stamped with a copyright notice that says they may not be exported to nations such as America. They sued Kirtsaeng.

Wiley publishes editions of its textbooks in Thailand and sells them much cheaper there. The average Thai student evidently is not as well off financially as the typical American, at least that's what Wiley believes. They realized they could sell for substantially higher prices in America. Wiley's actions can be interpreted in two ways. Wiley argues that what it is doing is making affordable instruction available to young people in poorer countries who otherwise would never get the chance to lift themselves up. This is altruism in action. They explained the cheap pricing is only possible because the costs of producing the books (other than printing) are covered by sales in America. American students, however, may have interpreted Wiley's actions as more akin to price gouging. Either way, motivation was not the issue that motivated the Supreme Court's decision. For the Court, it came down to a question of law.

The reason you can resell your used books, even though they are copyrighted by the publisher, is something called the “first sale” doctrine. This doctrine says that once the first sale has been made legally under the copyright law, the next owners are free to sell those goods indefinitely, regardless of copyright claims. So, you cannot copy a copyrighted item and sell it. That is not legal under copyright law. But, if the copyright holder sells you a book, you can resell your legally purchased copy. The publisher cannot place a notice in the book saying the purchaser may not resell his copy. Once he has purchased it, he may do as he pleases.

And yet, the contrary is exactly what Wiley printed in their books. At least, their notice limited where the used copies could be sold, in contradiction to the “first sale” doctrine that says purchasers may do as they please with the books they buy. Wiley's noticed stated, “This book is authorized for sale in Europe, Asia, Africa, and the Middle East only and may be not exported out of these territories.” However, Kirtsaeng did precisely what this warning claimed to prohibit. He exported the books out of those territories and resold them in America.

Wiley won its suit, both in the trial and in its appeal to the second highest court in the land. Kirtsaeng, who reportedly made around $100,000 selling the books, was assessed damages of $600,000. He appealed to the Supreme Court.

The case turned on something of a legal technicality in the wording of the statute. At least that's what the decision says. Sometimes, I think, courts first figure out what they think is right, and then fit the law to reach the “right” verdict. The key factor in this case was whether the word “under” in the statute implied a geographical or non-geographical meaning. Non-legal minds might think this legalistic nitpicking, but all of those booksellers and librarians, and Mr. Kirtsaeng, who just saved $600,000, are breathing a sigh of relief. Here's how the ruling went down.

As noted, the “first sale” doctrine allows a buyer to resell his books and other merchandise legally purchased as he sees fit. However, that doctrine applies only to goods “lawfully made under this title” (U.S. copyright law). Wiley argued a geographical meaning to the terminology “under this title.” Books published under U.S. copyright law, the publisher argued, are books published in America. Books published in Thailand are not published “under” American copyright law, they said. American law has a geographical limitation. It applies to America. Therefore, they concluded, the “first sale” doctrine of American law does not apply to books printed somewhere else.

This argument led to all kinds of conniptions from booksellers, librarians, and resellers of other affected products, such as records and high-tech gadgets. Did this mean they would have to track down the manufacturer of everything produced overseas and ask for permission to sell their used copy? The American Library Association asked whether their members would need to seek publisher permission to loan the estimated 200 million foreign published books in their possession. Powell's stated that used book dealers have assumed for centuries the “first sale” doctrine applied to the books they sold. The bookseller argued, “Used-book dealers tell us that, from the time when Benjamin Franklin and Thomas Jefferson built commercial and personal libraries of foreign books, American readers have bought used books published and printed abroad.” Were Franklin and Jefferson involved illegal trade?

Rare Book Monthly

  • <b>Chiswick Auctions: Summer Books. August 22, 2018</b>
    <b>Chiswick Auctions, Aug. 22:</b> Adams (Richard). <i>Watership Down,</i> FIRST EDITION, author inscription on front free end paper, folded map tipped in, original boards, dust-jacket. £800 to £1,200
    <b>Chiswick Auctions, Aug. 22:</b> Bowles (John). <i>Several Prospects of the Most…la Ville de Londres, avec des Remarques Historiques fort Succinctes, qui les Regardant,</i> 20 double page engraved plates only, of 23, 1724. £200 to £300
    <b>Chiswick Auctions, Aug. 22:</b> Auden (W.H.). <i>Our Hunting Fathers,</i> FIRST SEPARATE EDITION, 1 of 22 copies, COPY B OF 5 PRINTED ON NORMANDIE, original patterned wrappers, Cambridge, for Frederic Prokosch, 1935. £800 to £1200
    <b>Chiswick Auctions: Summer Books. August 22, 2018</b>
    <b>Chiswick Auctions, Aug. 22:</b> Barrie (J. M.) & Attwell (Mabel Lucie, illustrator). <i>Peter Pan & Wendy,</i> FIRST EDITION, 12 chromolithograph plates, publisher's blue cloth, original printed dust jacket, [c.1920]; and 3 others (4). £200 to £300
    <b>Chiswick Auctions, Aug. 22:</b> Bartolozzi (Francesco). Genius Calling Forth the Fine Arts to Adorn Manufactures and Commerce; Agriculture (Husbandry Aided by Arts and Commerce), glazed and framed. £200 to £300
    <b>Chiswick Auctions, Aug. 22:</b> A collection of engraved caricatures, including Gillray ([James]) Tales of Wonder!, 1802; Rowlandson (Thomas) Sports, Smock Racing, 1811;Irish Jaunting Carr, 1814. £400 to £600
    <b>Chiswick Auctions: Summer Books. August 22, 2018</b>
    <b>Chiswick Auctions, Aug. 22:</b> Bennett (Charles H, illustrator). <i>Æsop’s Fables,</i> 1875; Buchanan (Robert). <i>Ballad Stories of the Affections,</i> [1866]; Douce (Francis), The Dance of Death, 1833. £200 to £300
    <b>Chiswick Auctions, Aug. 22:</b> Chinese Illustrations. A group of 6 Cantonese rice paper illustrations, depicting scenes of torture with different instruments, gouache, c.340 x 220mm, original wrapper boards preserved, [c. 1800]. £200 to £300
    <b>Chiswick Auctions, Aug. 22:</b> Dulac (Edmund). <i>The Queen of Romania, The Dreamer of Dreams,</i> 5 coloured plates, [1915]; and others illustrated by Edmund Dulac. £300 to £400
    <b>Chiswick Auctions: Summer Books. August 22, 2018</b>
    <b>Chiswick Auctions, Aug. 22:</b> Fronth (Per). Xingu Chronicles, the portfolio, comprising 30 plates, photogravues in colours, each signed, dated and titled in pencil, each numbered 10/35, on wove paper, 790 x 600 x 60mm, 1997. £300 to £400
    <b>Chiswick Auctions, Aug. 22:</b> Pasternak (Boris). <i>Doctor Zhivago,</i> FIRST ENGLISH EDITION, original red publisher’s cloth, pictorial dust jacket, 4to, Collins & Harvill Press, 1958. £200 to £300
    <b>Chiswick Auctions, Aug. 22:</b> 13 sepia photographs of visitors to the Thermes Nationaux d’Aix-les-Bains, c. 150 x 105mm, c.1890 (12). £300 to £400
  • <b>Swann Auction Galleries:</b> Luis de Lucena, <i>Arte de Ajedres,</i> first edition of the earliest extant manual on modern chess, Salamanca, circa 1496-97. Sold for $68,750.
    <b>Swann Auction Galleries:</b> Carte-de-visite album with 83 images of prominent African Americans & abolitionists, circa 1860s. Sold for $47,500.
    <b>Swann Auction Galleries:</b> Gustav Klimt, <i>Das Werk,</i> Vienna & Leipzig, 1918. Sold for $106,250.
    <b>Swann Auction Galleries:</b> Man Ray, <i>[London Transport] – Keeps London Going,</i> 1938. Sold for $149,000.
    <b>Swann Auction Galleries:</b> Thomas Jefferson, Letter Signed, to Major-General Nathanael Greene, promising reinforcements against Cornwallis, 1781. Sold for $35,000.
    <b>Swann Auction Galleries:</b> Nicolas de Fer, <i>L’Amerique Divisee Selon Letendue de ses Principales Parties,</i> Paris, 1713. Sold for $30,000.
    <b>Swann Auction Galleries:</b> Russell H. Tandy, <i>The Secret in the Old Attic,</i> watercolor, pencil & ink, 1944. Sold for $35,000.
    <b>Swann Auction Galleries:</b> Ernest Hemingway, <i>Three Stories & Ten Poems,</i> first edition of the author's first book, Paris, 1923. Sold for $23,750.
    <b>Swann Auction Galleries:</b> Walker Evans, <i>River Rouge Plant,</i> silver print, 1947. Sold for $57,500.
  • <b>19th Century Shop:</b> Charles Darwin on sexuality and the transmission of hereditary characteristics: Autograph Letter Signed to Lawson Tait. Down, 17 January [1877].
    <b>19th Century Shop:</b> MILTON, JOHN. <i>Paradise Lost. A Poem written in ten books.</i> London: 1667. A very rare example with the contemporary binding untouched and with a 1667 title page.
    <b>19th Century Shop:</b> Hamilton secures the ratification of the Constitution: <i>The Debates and Proceedings of the Convention of the State of New-York, assembled at Poughkeespsie, on the 17th June, 1788.</i>
    <b>19th Century Shop:</b> The social contract “Man is born free, and everywhere he is in chains”: ROUSSEAU, JEAN-JACQUES. <i>Principes du Droit Politique [Du Contract Social]</i>. Amsterdam: Michel Rey, 1762
    <b>19th Century Shop:</b> “The first English textbook on geometrical land-measurement and surveying”: BENESE, RICHARD. <i>This Boke Sheweth the Maner of Measurynge All Maner of Lande…</i>
  • <b>Bonhams: September 25, New York</b>
    <b>Bonhams, June 12 results:</b> Ernst, Max. <i>Mr. Knife and Miss Fork</i>. Paris, 1932. DELUXE EDITION. Sold for $15,625
    <b>Bonhams, June 12 results:</b> Cage, John. Autograph musical leaf from his Concert for Piano and Orchestra, NY, 1958. Sold for $18,750
    <b>Bonhams, June 12 results:</b> Cage, John. Autograph musical leaf from his Concert for Piano and Orchestra, NY, 1958. Sold for $18,750
    <b>Bonhams: September 25, New York</b>
    <b>Bonhams, June 12 results:</b> Einstein, Albert. Signed Passport Photo for his US citizenship application. Bermuda, 1935. Sold for $17,500
    <b>Bonhams, June 12 results:</b> Verard, Antoine. Illuminated printed Book of Hours. Paris, 1507. Sold for $7,500
    <b>Bonhams, June 12 results:</b> Wetterkurzschlussel. German Weather Report Codebook - for Enigma use. Berlin, 1942. Sold for $225,000
    <b>Bonhams: September 25, New York</b>
    <b>Bonhams, June 12 results:</b> Morelos y Pavon, Jose Maria. Autograph letter signed to El Virrey Venegas, February 5, 1812. Sold for $6,250
    <b>Bonhams, June 12 results:</b> Milne, A.A. Complete set of <i>Winnie-the-Pooh</i> books. 4 volumes. All first issue points. London, 1924-1928. Sold for $5,250
    <b>Bonhams, June 12 results:</b> A 48-star American Flag, battle worn flown at Guadalcanal and Peleliu, 1942-1944. Sold for $35,000
    <b>Bonhams, June 12 results:</b> Locke, John. Autograph Letter Signed mourning the death of his friend, William Molyneaux, 2 pp, October 27, 1698. Sold for $20,000

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