EBay User’s Copyright Fight Goes to High Court

(CN) - The Supreme Court on Monday agreed to consider whether an eBay seller needs the consent of a copyright owner to import and resell books manufactured abroad.

Though U.S. law gives such freedom under the first-sale doctrine, the idea of applying the rule to foreign works is novel.

Unable to use the doctrine as a defense, Supap Kirtsaeng was ordered by a federal jury in Manhattan to pay $600,000 in damages to John Wiley & Sons for copyright infringement.

Wiley, a textbook publisher, had sued Kirtsaeng for selling eight foreign editions of its publications to U.S. consumers through eBay. The company relies on an Asian subsidiary to manufacture books for sale in foreign countries, and these editions are usually marked with a legend to designate that they are to be sold only in a particular country or region.

Kirtsaeng, who used the handle Bluechristine99 on eBay, claimed that he turned to the eBay scheme to finance his graduate studies in California after studying mathematics at Cornell University. Born in Thailand, Kirtsaeng said his friends and family back home shipped him the foreign-edition Wiley textbooks in 2008, and that he kept the profits for himself after reimbursing the purchase costs.

At trial, Chief Judge Donald Pogue, who had been sitting in the Southern District of New York by designation from the Court of International Trade, refused to let Kirtsaeng use the first-sale doctrine as a defense.

A record of Kirtsaeng's PayPal account showed that he earned $1.2 million in revenues, though Kirtsaeng had claimed that he earned $900,000. Kirtsaeng managed to have this PayPal evidence excluded from the record after Wiley's lawyer introduced it to the jury, but he claimed on appeal that the evidence was unduly prejudicial.

A divided panel of the 2nd Circuit rejected Kirtsaeng's appeal entirely in August 2011. In a case of first impression for the court, the majority said that the first-sale doctrine does not apply to works manufactured outside of the United States.

As is its custom, the Supreme Court did not comment on its decision to accept Kirtsaeng's petition for certiorari Monday.

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