Thai academic wins US copyright case.
The United States Supreme Court has slapped down publishers with a decision that Thai student Supap Kirtsaeng was acting completely legally when he sold Thai editions of books in the United States.
Mr Supap, a graduate PhD student in mathematics at the University of Southern California, had his family buy low-cost textbooks in Bangkok and send them to him in Los Angeles, where he sold them at lower-than-US prices to help to finance his studies.
He reportedly earned a profit of US$100,000 with the niche business, selling books on eBay and elsewhere, using the name Bluechristine99 to build his reputation.
The textbook publisher John Wiley and Sons sued Mr Supap – who moved back to Bangkok and joined Silpakorn University after earning his degree – claiming the grey-market business needed its permission. Lower court juries slapped Mr Supap with a $600,000 fine, and seized his golf clubs, computer and printer as partial payment.
Wednesday morning (Thailand time), the Supreme Court overturned those penalties and vindicated Mr Supap as acting legally the whole time. It found the Thai student’s view of US copyright law “more persuasive” than the publishing industry’s, and it threw out the verdict against him. The justices even cited the eBay motto: “If you bought it, you own it, and you have a right to sell it.”
The decision brought a huge sigh of relief to resellers across the United States and even the world. It is a major victory for consumers, and also libraries, used bookstores, and all kinds of groups that depend on the right to lend or resell the goods they’ve legally purchased. If the publishers had won their case against Mr Supap it could easily have led to a slippery slope where big business demanded that consumers get permission before selling anything.
Big Copyright was furious at the decision.
The motion picture and recording industries said their international marketing strategy would be upset if they could not prevent unauthorised sales of video discs or CDs.
The decision “will hinder American business’ ability to compete overseas to the detriment of the long-term economic interests of the United States, and particularly its creative industries,” claimed the Motion Picture Association of America.
Justice Stephen G Breyer, speaking for the Court’s majority, said the justices were wary of extending copyright protection to all manner of products, including books and artworks, that were lawfully made and sold abroad.
In dissent, Justice Ruth Bader Ginsburg called the ruling a “bold departure” from “Congress’ aim to protect copyright owners against the unauthorised importation of low-priced, foreign-made copies of their copyrighted works.” Conservative justices Antonin Scalia and Anthony M Kennedy agreed with her.
Tom Allen, chief executive of the Association of American Publishers, voice the inevitable threat, that the ruling would harm the ability of American publishers to compete in global markets:
“That ruling creates a disincentive for American educational publishers to continue to produce Asian editions or editions for foreign markets.”
Of course he stopped short of predicting such an event, which is extremely unlikely.
The decision cites an amicus brief filed by EFF and Public Knowledge, among others, explaining that limiting first sale to works made in the United States would encourage at least two perverse outcomes: American consumers lose access to affordable used copies of products, and companies move American manufacturing and related jobs overseas. Congress could not have intended these results. What is worse, given that copyrighted works are embedded in all kinds of goods, from refrigerators to watches, the ramifications would reach well beyond the traditional book market. As the Court noted:
We  doubt that Congress would have intended to create the practical copyright-related harms with which a geographical interpretation would threaten ordinary scholarly, artistic, commercial, and consumer activities.
The practical problems that petitioner and his amici have described are too serious, too extensive, and too likely to come about for us to dismiss them as insignificant—particularly in light of the evergrowing importance of foreign trade to America.
The Supreme Court’s decision recognizes that copyright is supposed to serve the public interest, not the other way around. And as we’ve said before, giving rightsholders overly broad and restrictive enforcement powers is harmful to that public interest, even if those rightsholders aren’t actively abusing them:
a copyright law that can work in practice only if unenforced is not a sound copyright law. It is a law that would create uncertainty, would bring about selective enforcement, and, if widely unenforced, would breed disrespect for copyright law itself.
The Court’s decision reflects a real common sense approach to copyright law. That approach will be needed if, as seems increasingly likely, we see a serious effort towards copyright reform. Whether the goal is fixing the Digital Millennium Copyright Act, making the world safe for hostage works, or bring a sense of rationality and proportion to statutory damages, the focus should stay firmly on preserving (or restoring) a sensible balance between the rights of authors, secondary users, and the general public.