[pp.int.general] Fwd: [A2k] Andrew Albanese: Second Circuit Copyright Ruling Could Affect Libraries

[Amelia Andersdotter]

they're keeping trade domestic :-) (the us are)

-------- Original Message --------
Subject: 	[A2k] Andrew Albanese: Second Circuit Copyright Ruling Could 
Affect Libraries
Date: 	Wed, 7 Sep 2011 13:15:40 -0400
From: 	Manon Ress <manon.ress at keionline.org>
To: 	a2k discuss list <a2k at lists.keionline.org>



Second Circuit Copyright Ruling Could Affect Libraries
By Andrew Albanese
Sep 07, 2011
http://www.publishersweekly.com/pw/by-topic/digital/copyright/article/48587-second-circuit-copyright-ruling-could-affect-libraries-and-jobs.html

Librarians and book re-sellers say their core activities are now in
question after the Second Circuit Court of Appeals on August 15 upheld
a lower court decision finding that the “First Sale” doctrine in U.S.
copyright law—the provision that enables libraries to lend and
consumers to re-sell books they’ve lawfully purchased—does not apply
to works manufactured outside the U.S.  While the verdict stands as a
major victory for the publishing industry, which has long fought the
“illegal importation of foreign works,” especially textbooks, critics
say the broad decision goes too far, and could harm libraries and
encourage the outsourcing of jobs.

The ruling comes in the case of John Wiley&  Sons, Inc. v. Supap
Kirtsaeng, in which Kirtsaeng, a Thai-born U.S. student was accused of
importing and re-selling foreign editions of textbooks, made for
exclusive sale abroad, in the U.S. market via online service eBay. In
its verdict, a three-judge panel of the Second Circuit affirmed by a
2-1 margin that Kirtsaeng “could not avail himself of the first sale
doctrine,” because language in the statute says that products must be
“lawfully made.” The court ruled that those two words—“lawfully
made”—limits First Sale "specifically and exclusively to works that
are made in territories in which the Copyright Act is law, and not to
foreign-manufactured works."

The verdict is the second decision in a year to limit the First Sale
doctrine. In December, 2010, the Supreme Court deadlocked 4-4 (with
Justice Elena Kagan abstaining) in the case of Costco Wholesale
Corporation v. Omega, S.A., the net effect of which was to affirm a
Ninth Circuit Court of Appeals decision that enjoined big-box store
Costco from selling copyrighted, foreign-made Omega watches,
authorized for sale only in foreign territories, in the U.S. market.
Because the Supreme Court deadlocked, however, the Ninth Circuit
ruling is non-binding on other circuits. The Second Circuit ruling,
observers say, now goes further than the Omega decision, and could
upend decades of common practice for libraries and used booksellers.

“The Second Circuit’s decision is actually worse than the Ninth
Circuit’s decision in Costco in a manner significant to libraries,”
explained Washington-based attorney Jonathan Band in a recent blog
post for the Association of Research Libraries. Basically, the Ninth
Circuit ruled that First Sale still applied to a foreign manufactured
copy if it was imported “with the authority of the U.S. copyright
owner,” Band explained. In other words, if a library bought a book in
the U.S. from a U.S. publisher, and that book happened to be printed
in China, a library under the Ninth Circuit interpretation would have
the right under First Sale to lend that book. “Unfortunately, the
Second Circuit rejected this exception as not having a foundation in
the First Sale Doctrine language,” Band notes. That means, in the
Second Circuit (NY, VT, CT), the First Sale pillar libraries have
relied on for decades to lend books does not exist for a book
manufactured outside of the U.S., even if it was legally purchased in
the U.S. from a U.S. publisher. That doesn't necessarily mean
libraries absolutely can't lend foreign-made books, Band adds, but
libraries would have to rely on narrower copyright exceptions to do
so.

“Libraries do not even know, I am afraid, how much of their
collections are manufactured abroad,” Blogged Duke University
scholarly communication officers Kevin Smith. “So, a potentially very
large, and probably indeterminate, portion of library collections in
the Second Circuit may now be in a grey area.”

It seems highly unlikely that publishers would ever seek to stop
libraries from circulating books because of where they were printed.
But the ruling creates uncertainty, and it gives publishers yet
another potential element of control when it comes to library usage,
and at a time when the shift to licensed access of e-books is already
impacting the ability of libraries to purchase and lend content. “At
the very least, libraries must demand information from publishers
about where every item has been manufactured,” Smith blogged. “But
what I really fear is that publishers will begin to manufacture more
of their works overseas and then try to demand a higher price—one that
includes public lending rights.”

It does not seem so unlikely, on the other hand, that publishers might
use the ruling to stop the sale of used books—especially textbooks, a
secondary market at which publishers have long chafed. While the
defendant in the Wiley case, Supap Kirtsaeng, is “an unsympathetic
party,” Smith concedes, a person who created a lucrative business
re-selling cheap foreign textbooks in the U.S. market, the Second
Circuit’s overly broad decision, he notes, gives publishers an easy
path to shutting down the secondary market for textbooks, and not just
for the Supap Kirtsaengs of the world, but for every student: simply
print their books overseas.

That outcome is a negative the judges themselves, the majority and the
dissent, acknowledged in their opinions. “Both the majority and the
dissent agree that this interpretation of the First Sale Doctrine is a
job-killer,” Band noted, “because it encourages the exportation of
U.S. printing jobs.”



-- 
Manon Anne Ress
Knowledge Ecology International
1621 Connecticut Ave, NW, Suite 500
Washington, DC 20009 USA
http://www.keionline.org
manon.ress at keionline.org

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