Coalition forms around copyright case
By Eliza Krigman
Internet companies are joining forces with libraries and educators to form a new coalition in a legal battle with broad e-commerce implications.
Next Monday, the Supreme Court will hear oral argument in Kirtsaeng v. John Wiley and Sons, a copyright case involving the scope of the first sale doctrine. The doctrine limits the reach of rights holders by allowing consumers to resell lawfully purchased goods. The 2nd Circuit appeals court ruled in the case that the doctrine did not apply when Supap Kirtsaeng had family and friends buy foreign-made textbooks abroad and send them to him in the United States, where he sold them on eBay for a profit.
The new coalition, called the Owners Rights Initiative, disagrees with the 2nd Circuit, and is hoping the high court rules the other way.
“If you bought it you own it,” said Andrew Shore, executive director of ORI, whose members include eBay, the Internet Commerce Coalition, CCIA, Redbox and Overstock.com. “You should be able to do with it what you please.”
A “bad ruling” from the high court, Shore says, would be “totally destructive” to secondary markets powered by Internet companies like eBay and Overstock.com.
Although the Supreme Court case is the impetus for the coalition, the group is looking to influence policymakers on the issue even before the justices rule.
“What we are doing is laying the groundwork for the post-Supreme Court environment,” Shore said. “This isn’t the first case on this issue. We want it to be the last.”
Whether Congress needs to step in, Shore says, depends on how the justices rule. But Shore figures that lawmakers will have to get involved.
“My gut instinct is that in the end that this will be an issue for Capitol Hill to sort out,” Shore said.
And the coalition isn’t wasting anytime in championing its position.
Attorneys with Overstock.com and eBay; Marvin Ammori, an Internet policy expert and consultant, and other coalition affiliates are holding a press call on Tuesday to explain their stance. And ORI already has meetings with lawmakers set up — although Shore declined to name specific ones.
“We don’t want to wait until there is a decision; we want to be ready to go,” Shore said. “I don’t expect that the other side will be sitting back, waiting and drinking coffee, so I’m not going to either.”
The other side includes the MPAA and RIAA, which filed a joint amicus brief supporting the publishers. Contrary to what the new coalition says, the real economic harm is the one rights holders could face if the Supreme Court doesn’t uphold the lower court’s ruling, they argue.
“Like the sale of ‘pirated’ copies, unauthorized importation of copies of protected works made overseas and intended only for sale in a foreign market can undercut or eliminate the economic benefit that Congress intended to provide under the Copyright Act,” the MPAA/RIAA brief states. “Were this court to reverse settled law and accept petitioner’s interpretation of the first sale doctrine, MPAA’s and RIAA’s members and affiliates could face a significant threat of harm from unauthorized importation, contrary to the balance of rewards and incentives.”
Source: Politico, October 23, 2012