Thursday, March 4, 2021

High textbook costs & the US Supreme Court


In the Supreme Court of the United States, a 6-3 ruling Tuesday declared that US copyright law supports legally purchasing a textbook in a foreign country, where prices are usually cheaper, importing it to the US, and selling it for a profit, even if the copyright owner didn’t authorize the import or resale of the book.

The Court heard arguments in the case known as Kirtsaeng v. John Wiley & Sons last October and decided in favor of Kirtsaeng this week. Supap Kirtsaeng is a Thai national who attended Cornell and the University of Southern California. Family and friends back in Thailand purchased copies of textbooks used in US universities and shipped them to him in the US. He resold them at a profit, following his entrepreneurial instincts.

One major publisher of US textbooks, John Wiley & Sons, said this business activity took control away from the copyright owner, and even a rightful owner of a copy of a copyrighted work must get permission before he or she can transport the book to a new geographical location, such as into the US. A US district court agreed, saying that the right to control the location of a copy of a book like this was reserved to the copyright owner under US Copyright law. The US Court of Appeals for the Second Circuit upheld the district court’s ruling, which led Mr Kirtsaeng to appeal to the Supreme Court.

Mr Kirtsaeng’s point of view

Plaintiff argued that the books he bought were manufactured legally in a foreign country and he purchased them legally. He therefore has control of a certain number of copies of a copyrighted work. He should be able to give them away or sell them as he wants.

Let’s use a different example to illustrate the “copy of a copyrighted work” point. Say I own a Mexican restaurant where I want to sell bottles of Mexican Coke. This is only made in Mexico, and it has to be imported into the US, clearing the border patrol, and then to my restaurant. As long as I purchase it legally in Mexico, I can sell it at a profit at my restaurant. During oral arguments, justices used the example of a GPS in a Toyota, but the same principle applies: both the Mexican Coke and Toyota’s GPS are copyrighted works, and legally purchasing a copy of those works should take away rights of the copyright owner to control the location of the copy I bought.

US libraries, which can often purchase books from foreign distributors, supported Mr Kirtsaeng, since their ability to purchase books from foreign sources at cheaper prices will continue with the Court’s favorable ruling for Mr Kirtsaeng.

The publishing company’s point of view

Responding to market pressures, publishers usually sell textbooks at American universities at substantially higher prices than they do at, say, a bookstore in a developing country. The purpose of this has often been said to be distributing intellectual property in developing countries at prices they can afford.

Publishers also routinely run presses in foreign countries and authorize books to be printed there and both sold there and imported into the US for resale here at a profit. By importing books on his own, without the permission of or payment to copyright owners, Mr Kirtsaeng is restricting trade. He is also driving up the price of textbooks in developing countries, since publishers will want to discourage this practice, thereby making it more difficult for people or libraries in those countries to buy the books.

Furthermore, since publishers may take steps to curb this business practice, libraries in the US and other mass purchasers of books may see a decrease in their ability to purchase books at discounted prices.

The Supreme Court’s resolution

The decision came down to a technicality in the language of US Copyright law, which is enormously complex. Basically, the Supreme Court ruled that once a copy is purchased legally, the copyright owner can no longer control the geographical location of that single copy of the work. In other words, the publisher cannot stop the legal owner of a copy of a copyrighted work from moving it anywhere around the world he or she may want to move it.

Paul Katula
Paul Katula is the executive editor of the Voxitatis Research Foundation, which publishes this blog. For more information, see the About page.

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