By Linda P. Campbell
lcampbell@star-telegram.com
On Monday, when most of the East Coast was wrestling with an approaching storm named Sandy, folks who gathered at the U.S. Supreme Court were wrestling with a dispute between a powerful publisher and a Thai man who helped finance his graduate education by reselling textbooks on eBay.
The case of Supap Kirtsaeng v. John Wiley & Sons has book publishers lined up against the American Library Association; movie companies against Costco, Goodwill and Half Price Books; the American Intellectual Property Law Association against the Association of Art Museum Directors. It's high stakes and high drama over the meaning of a phrase -- "lawfully made under this title" -- in U.S. copyright law.
Yes, what the meaning of "is" is really does matter. And not just to lawyers.
Kirtsaeng came to the U.S. in 1997 to study at Cornell University in New York, then completed a doctorate in math at the University of Southern California and returned to Thailand to teach, according to legal briefs.
While he was in the U.S., family members would buy English-language textbooks in Thailand, where they were cheaper, and he resold them.
These weren't like pirated movies that get smuggled into the U.S., and that makes the case harder.
Under copyright law, if a book or other material is published in the U.S., whoever buys it can resell it for any price they can get. But what about copyrighted goods U.S. companies produce abroad with the intent that they stay there? Will resellers in the U.S. have to start tracking where things come from -- or get sued?
Kirtsaeng profited from his sales, but presumably his clients paid less than the exorbitant sticker prices of most college textbooks.
Without condoning what he did, I certainly understand it. I have multiple semesters of experience scouring the options for curtailing textbook costs for my two collegians. Opportunities for used books and rentals proliferate, but they aren't always an option, especially when professors assign the latest edition of a book or the class requires an expensive online access code.
In late August, shortly before I helped my daughter move into a New York City dorm for the fall, we discovered she needed a book immediately. After some online sleuthing and several phone calls, we scrambled from the Upper West Side to a Barnes & Noble on East 17th Street, just a few minutes before it closed. We got the last copy of the book, used, for $73.50. Materials for my son's summer math course totaled $167.50, but that was far lower than list price.
But I understand that publishers are entitled to try to stay in business.
Wiley won a jury verdict against Kirtsaeng (dba Bluechristene99): $75,000 per infringing book, a total of $600,000. The court ordered him to turn over his computer, printer and golf clubs to help cover the judgment.
Kirtsaeng argues that a ruling for the publisher would let companies shut down public libraries, flea markets and rental outfits like Netflix if they were dealing in products made overseas.
Wiley argues that a win for Kirtsaeng would mean publishers have to charge the same prices everywhere in the world or have lower-priced goods come back and undermine their U.S. sales.
During Monday's arguments, Justice Stephen Breyer asked if Wiley prevailed, what would happen if he bought his wife a book while on an international trip? Would Americans be able to sell their Toyotas, which have copyright sound and GPS systems, without permission of the copyright holders? Would museums that buy Picassos be able to display them "without getting permission from the five heirs who are disputing ownership of the Picasso copyrights"?
However the court rules, I doubt it will bring down prices for students and their parents. But the case almost certainly will land in an expensive law school textbook.
Linda P. Campbell is a Star-Telegram editorial writer.817-390-7867Twitter: @LindaPCampbell
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