I still have a few old textbooks in my room, in several cases because the campus bookstore wouldn’t take them back on account of new editions having been released. For that reason, I’m not upset to see textbook publishers worry about losing money; they get plenty by bilking students and wasting professors’ time with the “new edition” strategy already. Unfortunately, in Kirtsaeng v. John Wiley & Sons, they might have a case – although not even half the case they’re going for.
The ruling concerns Supap Kirtsaeng, a student from Thailand studying math at the University of Southern California, who had relatives in Thailand buy cheaper English-language textbooks manufactured there and ship them to him for resale on eBay, earning him a cool $900,000. The publisher John Wiley & Sons argues that Kirtsaeng violated copyright law by failing to check their permission to resell the books. The case is now before the Supreme Court, following a ruling from the 2nd U.S. Circuit Court of Appeals that sided with Wiley.
The appellate court’s reasoning for that ruling was that the first-sale doctrine, in which the copyright holder of a product exhausts their interest in it when it is first sold, does not apply to products manufactured abroad. Wiley says Kirtsaeng’s practice “undercuts” their U.S. sales. Actually, their practice of charging lower prices in Thailand undercuts their U.S. sales. I bet they’re kicking themselves for not seeing to it that students in the U.S. wouldn’t find out about the price difference.
Kirtsaeng’s business isn’t all that different from any other second-hand shop, associations for which are siding with Kirtsaeng, fearing that a ruling in Wiley’s favor could prevent them from doing business. The only real thing for which Wiley could get him is a marking on the books stating that they were not to be imported. And they were indeed imported with intent to sell, unlike someone who buys a book on an overseas vacation, takes it back to the States and gets bored of it and sells it years later, as has been known to happen.
That, in my view, is the only argument Wiley has against Kirtsaeng. The first sale was perfectly legal. The act of reselling was also legal. The only thing that wasn’t was the unauthorized importation with immediate intent to sell, which in Kirtsaeng’s case is easy to prove given his pattern; that kind of importation costs manufacturers $63 billion annually, according to a 2009 report. It may be necessary to revisit existing copyright legislation to clarify that illegality specifically.
But if I were a student with a stake in cheaper textbooks, I’d probably tell the publisher to go shove this 1,000+ page book of plays. I could have paid a couple of bucks for each play at a used book store and it would have been a fraction of the cost.