Wednesday, December 5, 2012

Used bookstores at risk with copyright law

Posted By on Wed, Dec 5, 2012 at 2:42 PM

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I've been trying to lighten my load lately, getting rid of some excess baggage. In my case, this means books. I've got piles of the beloved things, a few going back to my high school days. If you're like me, you understand a book is like a lucky charm. It has an aura. Just seeing it can be enough to give me an idea, bring back a memory, provide a missing beat.

I realize how this sounds. My high school English teacher, Mrs. Lewkowicz, didn't buy it either. She insisted I actually read the things.

I've managed to haul several carloads of books downtown to the Indy Reads used bookstore on Massachusetts Avenue. Just because these volumes no longer cast a spell on me doesn't mean they can't get to somebody else. Besides, I like the fact that by donating books to the Indy Reads store's inventory, I am also supporting efforts to help adults learn to read.

But a case that recently went before the U.S. Supreme Court could make it harder for book nuts like me to share what's on our shelves; worse, it could put a used bookstore like Indy Reads out of business.

Kirtsaeng v. Wiley pits a former graduate student named Supap Kirtsaeng against textbook publisher John Wiley & Sons. Kirtsaeng is a Thai citizen who, while studying at Cornell University, discovered that the exorbitantly expensive textbooks he was required to purchase for his coursework were available in much cheaper editions back home. Kirtsaeng had his parents send him the cheaper foreign editions and then he got the bright idea to sell them for a profit to other American students. Kirtsaeng figures he made about $900,000 this way.

He also managed to attract the attention of John Wiley & Sons, who took him to court. Wiley was able to sue Kirtsaeng thanks to a wrinkle in U.S, copyright law. Before we look at that wrinkle, here's a little background. In 1908, the U.S. Supreme Court adopted an idea called the "first-sale doctrine." First-sale holds that once a copyright holder sells a copy of their work - like a book or a CD - whoever buys that copy is free to resell it or, as in my case with the books I brought to Indy Reads, give it away. That's what Kirtsaeng thought he was doing.

Here's the wrinkle: Section 602(a)(1) of the copyright law makes it illegal for anyone to import copyrighted material made for foreign markets and sold overseas for resale in the United States. These materials are called gray-market goods. Wiley invoked this section in its suit against Kirtsaeng.

So far, two courts have ruled in Wiley's favor, awarding the publisher $600,000 in statutory damages. But Kirtsaeng has appealed, which is why the case is now before the highest court in the land.

On the surface, the case seems cut-and-dried. But the court has only ruled once, in 2010, on the subject of gray-market goods, and then it was split, in a 4-4 tie. No precedent was set.

This time, interest groups, from eBay to Goodwill Industries, not to mention bookstore owners and librarians, have come forward, urging the court to rule in favor of Kirtsaeng. They fear that a time-honored way of exchange in this country could be at risk. "Even cherished American traditions, such as flea markets, garage sales, and swapping dog-eared books are vulnerable to copyright challenge," said Kirtsaeng's attorney, Josh Rosenkranz.

And while other legal observers say such fears are overblown, they concede a ruling in Wiley's favor could blow holes in the business models of large on-line players like eBay and craigslist.

It appears we will have to wait until June for the court to deliver its verdict in this case. In the meantime, we are left with a world in which the ability of creative people to make a living from their works and the ways in which those works are distributed and consumed are increasingly out of whack.

Although the implications of Kirtsaeng v. Wiley could be profound, it is hard not to see this case as anything but a rear-guard action in the world of intellectual property. This is a fight over books, after all. What could be more retro? These days, when I walk into a bookstore, I have to remind myself I'm not in a museum of printed things, or an antique shop.

Books themselves are on the way out. According to the Association of American Publishers, adult eBooks outsold hardcovers $282.3 million to $229.6 million in the first quarter of 2012. This only underscores the fact that our understanding of intellectual property is, as Wired writer John Perry Barlow has pointed out, evolving. Laws created to protect objects like books, sound recordings, movies and the like have been overwhelmed by the rise of ones and zeroes, the digitization of ideas and information.

Wiley, to paraphrase Barlow, is trying to protect a bottle when what is really at issue is the wine that bottle once contained. If the Supreme Court rules in favor of Wiley, it will prolong the bottle business a while longer. Thirsty people, though, are bound to find refreshment. Just don't ask me where to take an old copy of Gulliver's Travels.

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