Coalition Seeks to Lobby Congress in Support Of Stronger Rights Under First Sale Doctrine

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A coalition trumpeting the slogan “You bought it, you own it (you have a right to resell it!)” issued a statement on Oct. 23 announcing its intention to lobby lawmakers in support of stronger protections for consumers under the first sale doctrine.

The announcement comes just days before the Supreme Court is set to hear oral arguments in a case requiring resolution of a conflict between the first sale doctrine and a statute giving copyright holders the right to control distribution of their works on a country-by-country basis.

The coalition, going by the name the Owners' Rights Initiative, expressed alarm at what it called a trend of “sudden erosion of ownership rights,” according to a statement by its executive director, Andrew Shore.

The Supreme Court will on Oct. 29 hear arguments in Kirtsaeng d/b/a Bluechristine99 v. John Wiley & Sons Inc., No. 11-697 (to be argued 10/29/12) (73 PTD, 4/17/12).

At issue is a decision by a federal appeals court that the first sale doctrine does not apply to a claim of copyright infringement regarding a copy of a work lawfully made overseas and imported into the United States without the authorization of the copyright owner.

In that case, an individual from Thailand studying in the United States had cheap versions of textbooks sent to him from Thailand to be sold for a profit here on the eBay online auction website.

The problem arises from the interplay of the first sale doctrine, 17 U.S.C. §109(a), and 17 U.S.C. §602(a)(1), which gives copyright owners the right to control the initial release of a work in the United States.

Fears That Production Will Move Overseas.

A legal advisor to the ORI, Marvin Ammori, was quoted in the press release as saying, “It is hard to conceive that Congress intended to incentivize manufacturers to move operations overseas, force American consumers to pay higher prices, make it hard for us to donate our own stuff to charity, and cripple the ability of libraries to lend books--without saying anything like that in the law. … [B]eing able to sell your own property is a fundamental liberty recognized for centuries and a pillar of a market economy.”

EBay Inc.'s Hillary Brill said that in considering the Kirtsaeng case, “The Supreme Court has an opportunity to protect the right of small businesses and individuals to sell legitimate goods across borders, which will benefit consumers, businesses and the overall Internet-enabled economy.”

The ORI coalition includes the American Free Trade Association, the American Library Association, the Association of Research Libraries, the Association of Service and Computer Dealers and the North American Association of Telecommunications Dealers, Chegg, eBay Inc., Goodwill Industries International Inc., the Home School Legal Defense Association, Impulse Technology, the Internet Commerce Coalition, the International Imaging Technology Council, Network Hardware Resale,, Powell's Books, Quality King Distributors Inc., Redbox, the United Network Equipment Dealers Association, and XS International.

By Anandashankar Mazumdar  

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