The world of copyright litigation is getting downright surreal. Recently a court struck down an appeal of a NY case involving reselling books from overseas in the U.S. Essentially, the court ruled that the first sale doctrine applies only to works manufactured in the United States. As reported in Library Journal:
The 2nd U.S. Circuit Court of Appeals ruled 2-1 in John Wiley & Sons Inc v. Supap Kirtsaeng that Kirtsaeng, a Thai man studying in the United States, infringed upon John Wiley & Sons’ copyrights when he had his family send him cheaper foreign editions of Wiley textbooks, printed by Wiley Asia, that he then resold on eBay for a profit.
Kevin Smith on the Scholarly Communications @ Duke blog has a great, clearheaded explanation of the implications of this decision for libraries:
One of the problems that the Wiley decision creates is uncertainty about library lending. Libraries do not even know, I am afraid, how much of their collections are manufactured abroad. In the Second Circuit, however, lending anything that was manufactured outside the U.S. is now in question, regardless of where it was purchased (even directly from the publisher).
Even more disturbing are the potential effects this ruling could have on students:
If libraries are in a difficult position, students may be even worse off under the Second Circuit’s ruling. Again, publishers now have an incentive to manufacture their textbooks abroad and sell them to U.S. students. Such students would no longer have the right to re-sell their textbooks or to purchase used texts.
The takeaway is that libraries may not be able to loan out books that were manufactured outside the United States, and students may not be able to buy or sell used textbooks. As Smith and others point out, there are dissenting opinions in the case, and perhaps the ruling will be challenged again in the future. But nonetheless this court ruling creates a potentially awful situation for higher education.
I’ll be interested to see whether there is any outcry over this decision from parts of the commercial sector. At my college (like many others) our bookstore buys back used textbooks to resell to students, and there are lots of thriving online book resellers like Half.com, Amazon, and AbeBooks. Perhaps these businesses will challenge the court ruling, which seems to have the potential to ruin many of them.
Every time I hear news like this I wonder how much closer it brings us to the tipping point, whether these increasingly restrictive applications of copyright law will push libraries and higher education into action against scholarly publishers who seem to be making it more and more challenging to read and use the work they publish. But it can be difficult to determine what action to take. Smith suggests a couple of possibilities, including libraries’ asking where books were manufactured before purchasing them, which I have to admit seems onerous to me. Faculty could stop assigning textbooks manufactured overseas to their students, but given the advantages to publishers of offshore manufacturing there will likely always be the need to assign at least some books that were not made in the U.S.
It’s also interesting to note that there was no coverage of this story in two of the bigger higher ed news sources, The Chron and InsideHigherEd.com. Perhaps this, like so many other scholarly publishing issues, is thought to be more of a problem for libraries than for faculty and administrators? Though I’d hate to see libraries restricting their lending practices and students balking at buying textbooks they can’t resell, perhaps these effects would raise awareness of these issues more broadly throughout academia?