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Big Win for Owners’ Rights

March 20, 2013

Yesterday the U.S. Supreme Court issued its opinion in an important copyright case, Kirtsaeng v. Wiley. The 6-3 opinion ensures that books and other copyright goods that are made overseas can be sold in the United States without the permission of the copyright holder. This is a great outcome for eBay sellers and a true victory for all American consumers and businesses.

The decision protects your right to buy and sell authentic goods, regardless of where they were made. This decision affirms eBay’s position that if you bought it, you own it, and you have the right to sell it.

eBay strongly believes in open markets that encourage competition, create price transparency and give consumers real choice, value, and selection. That's good for our sellers, good for consumers and good for the economy.

We’ve talked about this case and the issue of ownership rights here on eBay Main Street before, but here’s the synopsis. A graduate student named Supap Kirtsaeng bought fully authentic textbooks through friends and family in Thailand and sold them in the U.S. on eBay. He was sued by the book publisher, who claimed that copyright law barred his sales because the books were made in Thailand and he didn’t have the publisher’s permission to sell them. Kirtsaeng claimed that he was the lawful owner of those books since he had paid full price for them in Thailand, and he could now do with them what he wished.  The lower courts ruled against Kirtsaeng, and the case was appealed all the way to the Supreme Court.  

The Supreme Court ruled in favor of Kirtsaeng and all eBay sellers.  It supported the 100-year old legal doctrine that  if you bought something, you could resell it, a right protected by a statute in the Copyright Act referred to as the ‘first sale doctrine.’  Specifically, the Copyright Act allows the owner of a particular copy “lawfully made under this title” to sell or otherwise dispose of the possession of that copy without the authority of the copyright owner.  In Kirtsaeng vs. Wiley, the court was wrestling with the specific legal question of whether the first sale doctrine applies to goods made outside the U.S.

In the majority opinion, written by Justice Breyer, the court stated unequivocally that first sale doctrine applies to goods that were lawfully made abroad:

We ask whether the “first sale” doctrine applies to protect a buyer or other lawful owner of a copy (of a copyrighted work) lawfully manufactured abroad. Can that buyer bring that copy into the United States (and sell it or give it away) without obtaining permission to do so from the copyright owner?  Can, for example, someone who purchases, say at a used bookstore, a book printed abroad subsequently resell it without the copyright owner’s permission? In our view, the answers to these questions are, yes.

The decision is gratifying to eBay and a variety of organizations that could have been impacted if the court had ruled a different way. Failing to extend first sale protection to goods made abroad could have created a legal minefield for businesses, libraries, donation stories and others that sell and lend things that were made overseas. Could you imagine if you had to get permission from a manufacturer to sell certain items on eBay? It would create serious headaches for our sellers in terms of compliance, and open them up to risk of lawsuits. Thankfully, the court has taken the right approach in this case, but we can expect that publishers and other rights owners will continue to press this issue in Congress and eBay Inc.’s Government Relations team will continue to fight to protect your ownership rights.

As always, we’ll be here to keep you informed and continue to advocate for sound public policy that encourages competition, preserves open markets and helps small businesses to grow and compete on a global stage.