Kirtsaeng would ask his family to purchase the cheaper English-language copies of textbooks in Thailand and then sell them on eBay, according to a court brief. Some of the books his family shipped were copyrighted by publisher John Wiley & Sons, which sued Kirtsaeng for copyright infringement.
The suit has stirred concern from eBay, Google and various library associations, who argue that a person that purchases an item should be able to sell it or lend it out regardless of where it's made.
"If the court rules in favor of Wiley, libraries may be unable to lend books, individuals could be restricted from donating items to charities, and businesses and consumers could be prevented from selling a variety of products, from electronics, to books, to jewelry, to used cars," said Andrew Shore, executive director of the industry coalition Owners' Rights Initiative (ORI), in a statement.
ORI's members include eBay, Overstock, the Computer & Communications Industry Association and the American Library Association.
Arguing on behalf of Wiley before the Supreme Court, Theodore Olson contended that the phrase "lawfully made" found in copyright law is defined as "lawfully made under the copyright laws of the United States," and therefore Kirstaeng violated copyright law by not asking Wiley for permission before selling copies of the copyrighted books.
"if you're going to use the product created by someone else in a way that's contemplated by the copyright laws, maybe it's required that you actually comply with the copyright laws by going to the owner of the copyright and saying, look, here's what I propose to do, can I have a license to do this?" Olsen said during an exchange with Justice Stephen Breyer.
The Motion Picture Association of America and Recording Industry Association of America filed an amicus brief in support of Wiley, arguing that it would be hard for their businesses to compete abroad if the court took Kirstaeng's position. They also argued in the brief that concerns about libraries and second-hand shops being affected were overblown as "there is no evidence this long-recognized principle has actually impaired any important secondary markets or led to imposition of liability on well-meaning librarians, teachers, or garage-sale hosts."
Breyer pushed back against Olson's interpretation of the copyright law, arguing that it would, for example, prevent people from re-selling their Toyota cars in the U.S. because they are manufactured in Japan.
"They have copyrighted sound systems. They have copyrighted GPS systems. When people buy them in America, they think they're going to be able to resell them," Breyer said. "Under [your] reading, the millions of Americans who buy Toyotas could not resell them without getting the permission of the copyright holder of every item in that car which is copyrighted?"
Joshua Rosenkranz, the attorney representing Kirstaeng, told the justices that "what Congress wrote was 'lawfully made under this title,' not 'lawfully made in the United States.' " Wiley's interpretation of that phrase "grants them rights far beyond anything that anyone could have imagined asking for" back when the copyright law was crafted, Rosenkranz argued.
Justice Ruth Bader Ginsburg, known as a strict advocate for copyrights, was skeptical of that argument.
"Your reading is essentially, once a copy is sold anywhere, the copyright owner loses control of distribution everywhere," Ginsburg told Rosenkranz.
The copyright case is expected to be decided next year.