Art in Paradise: Second Time Around

It’s happened to most everyone—you buy a CD, get it home and crank it up. Somehow the disc that sounded so stellar at the store doesn’t translate to your living room. Now it’s stale and, by the third listen, beginning to wear on you.

No problem. Put it in the case and trundle over to the used record shop, where you can sell it and put the dough toward a gleaming new circle of, one hopes, more gratifying sonic goodness.

What if, instead, you had to check if the disc was made abroad? If it came from outside our borders, you’d have to get permission from the copyright holder—whoever and wherever they might be—to sell it. Not only would this be a logistical nightmare that could lead to unmovable copyrighted works becoming fodder for landfill disposal or black market sale, it would encourage copyright holders to have everything possible produced overseas in order to control all future sales.

Such a development would clearly wreak havoc in the sizeable secondhand market, which many count on, especially in a tough economy, in order to avoid the considerable expense of new merchandise. EBay and Craigslist might well be dealt mortal blows. Even museums’ and libraries’ loan or display of foreign works could be considered copyright infringement, as could resale of imported cars.

In the case of Kirtsaeng v. John Wiley & Sons Inc., such scenarios became fodder for Supreme Courty discussion last week.

Supap Kirtsaeng, a Thai student who studied in the U.S., had lower-priced textbooks shipped to him from relatives in Thailand, then sold the books in the U.S., apparently amassing a considerable profit in the process. The publisher didn’t care for this practice, and brought suit. In that suit, a New York U.S. District Court found Kirtsaeng guilty of copyright infringement, a verdict Kirtsaeng appealed.

Northampton attorney Peter Irvine specializes in entertainment and copyright law (a subject he has a personal stake in as drummer for the band Cordelia’s Dad), and offered his own take on this strange, if important, case.

“I can see both sides,” says Irvine. “It’s an interesting dilemma. There’s a hole in the law.”

The law in question is the Copyright Act of 1976, and, explains Irvine, a lot of the current case is being argued on the basis of Congress’ intent regarding imported goods under that law. “This situation—foreign manufacture—could create an exception to U.S. copyright law,” says Irvine. “It’s a curious question. It doesn’t seem like it should.”

As Irvine explains, that would mean a copyright holder who’s not subject to U.S. copyright law could end up with the right to control resale, and a copyright holder who is subject to the law wouldn’t have that control.

In the Supreme Court arguments, a related matter came to light, one that many Americans are sensitive to. E. Joshua Rosenkranz, arguing on behalf of Kirtsaeng, said, “The moment that a manufacturer learns that this Court says you get what we’ve called the Holy Grail of manufacturing, endless eternal downstream control over sales and rentals, you can ruin secondary markets that are competing with you. The moment that happens, that will be yet another reason for manufacturers silently to decide that they’re headed—that they’re sending their manufacturing overseas.”

One interpretation of the law might put a finer point on that, one that distinguishes between books meant to be sold here or abroad. “These [books Kirtsaeng sold] were intended to be sold overseas,” says Irvine. “Maybe copyright holders do have the right to control distribution.”

That control certainly seems vital for maufacturers in an era when worldwide reach is important—Kirtsaeng, in effect, took books priced for the Asian market and sold them where the price tag was higher.

Though the matter likely won’t be resolved until next year, Irvine offered what he called “an initial take” on the Supreme Court case. “The student selling textbooks should win based on section 109 of the Copyright Act, which talks about the ‘first sale doctrine’ [that copyright holders only have a stake in the initial sale]. Maybe it needs refinement—the Court or Congress might narrow the importation clause so that there’s more control over pirated or ‘gray market’ goods.”

The current Supreme Court case is a strange conflict—on one hand, the draconian results Kirtsaeng’s side predicts would mean more potential money for artists and other copyright holders. On the other hand, the free market of ideas, not to mention the huge market for secondhand copyrighted works, might get throttled, squeezing the pocketbooks of the very folks who would purchase artistic output.

If the book publishers do win the day, says Irvine, “I tend to disagree that there would be extreme results. There’s copyright infringement all the time that people don’t enforce.”

He goes on to explain that it’s not generally law enforcement that polices copyright infringement, but the copyright holders themselves; it’s a matter of civil, not criminal, law. That’s something to keep in mind when you can’t fast-forward through that FBI warning most of us have had to sit through several thousand times. “That FBI warning?,” says Irvine. “It’s only really been enforced a couple of times.”•

Author: James Heflin

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