On Monday, the Supreme Court heard oral arguments in a Kirtsaeng v. John Wiley & Sons, Inc., a case that could have a far-reaching impact on libraries by changing the scope and applicability of first-sale doctrine. If the court finds for the publishers, first-sale doctrine may not apply to copyrighted works manufactured abroad. This issue also arose in 2010’s Costco v. Omega case, but the result then was a 4-to-4 split decision. (Justice Kagan did not participate in Costco because she had argued as Solicitor General in support of Omega’s position – in other words, against the applicability of first-sale doctrine to goods manufactured abroad. She is widely expected to provide the swing vote in Kirtsaeng.)
The questions during oral arguments in Kirtsaeng suggest that a number of justices are trying to avoid upsetting the business practices of copyright holders who want to price discriminate across internationally segmented markets. At the same time, most of the justices also want to minimize the potential for nightmarish or absurd consequences if they decide in favor of the publishers.
Justice Ginsburg pressed the first consideration especially hard, expressing concern that that a decision against the publishers would put the U.S. out-of-step with the current international distribution regime – a concern that seems to have been shared to some degree by Justices Kagan and Alito.
On the other hand, Justice Breyer did not appear to be the only member of the Court to worry about the possible consequences of siding with the publishers. Taking up some of the examples used in the amicus briefs, dubbed “the parade of horribles,” Breyer questioned whether a Toyota that had copyrighted systems (such as GPS and music) would be able to be resold without obtaining permission of all the relevant copyright holders. Despite attempts by the publishers’ attorney to claim that the horribles were not relevant to the case, Justices Kennedy, Roberts, Sotomayor, and Alito all seemed at least somewhat sympathetic to the idea that they are.
Most court watchers have long expected that the Court will try to find some kind of middle ground. Such a “split-the-baby” decision is likely to be complex, and, if the court reaches one, it may be some time before all of its implications are understood.
The briefs and the oral arguments are all available at Scotusblog, http://tinyurl.com/aru8wbn, along with informed analysis of what the justices’ questions. AALL joined in an amicus brief with Public Knowledge, the Electronic Frontier Foundation, the Special Library Association, and the U.S. Public Interest Research Group, http://tinyurl.com/c5kdqej. And an issue brief on the case from AALL is also available.
In addition, ARL provided analysis of what the case might mean for libraries – including “Plan B” positions should the court find in favor of the publishers – in an hour-long webcast on October 18. That webcast is now available at ARL’s Youtube channel, at http://tinyurl.com/a6ejm8u. (Experts included Jonathan Band, the author of the ALA, ARCL, and ARL brief.) This discussion is especially useful for getting a sense of what some of the “middle ground” decisions might be like.