UPDATE: Meredith Schwartz at LJ has posted a report about the filing that includes a comment from one of the author’s, Jonathan Band.
The Association of Research Libraries (ARL) joined the American Library Association (ALA) and the Association of College and Research Libraries (ACRL), who all work collectively as the Library Copyright Alliance (LCA), to file an amicus curiae brief (PDF) with the Supreme Court of the United States in support of petitioner Supap Kirtsaeng in the case Kirtsaeng v. Wiley & Sons.
On the eve of Independence Day, the LCA asks the Court to be true to the values of our country’s founders—people like Thomas Jefferson and Benjamin Franklin, who were both founders of libraries and great champions of library lending.
Wiley, a publisher of textbooks and other materials, claims Kirtsaeng infringed its copyrights by re-selling in the US cheaper foreign editions of Wiley textbooks that his family lawfully purchased abroad. The LCA believes an adverse decision in this case could affect libraries’ right to lend books and other materials manufactured abroad.
The “first-sale doctrine” is the provision in the Copyright Act that allows any purchaser of a legal copy of a book or other copyrighted work to sell or lend that copy. However, the US Court of Appeals for the Second Circuit ruled that the first-sale doctrine applied only to copies manufactured in the United States. This odd interpretation of the law effectively strips libraries of their first-sale right to lend their own copies of works made abroad.
In its friend-of-the-court brief, the LCA asks the Supreme Court to reverse the Second Circuit and apply the first-sale doctrine to all copies manufactured with the lawful authorization of the holder of a work’s US copyright.
This is the second case the Supreme Court has heard on this issue in the last two years. In Costco v. Omega (LCA brief here), a case involving the importation of luxury watches with copyrighted logos on them, the Court was deadlocked 4-4, leaving the issue unresolved. Justice Kagan recused herself from the case due to her participation in the litigation when she was Solicitor General, but Justice Kagan will participate in Kirtsaeng.
“Just as we did in Costco, libraries are standing up for common sense as well as their own rights and the rights of their patrons,” said Winston Tabb, President of ARL and Sheridan Dean of University Libraries and Museums at the Johns Hopkins University. “It simply makes no sense that the law would treat lawful owners of legitimate copies differently depending on where their copies were printed. Why would Congress impose this arbitrary limit on the fundamental rights of libraries and our patrons—to reward publishers who send printing jobs overseas?”
The LCA brief explains that this case is critically important to libraries and their users because a significant portion of US library collections consist of resources that were manufactured overseas. More than 200 million books in US libraries have foreign publishers. Additionally, many books published by US publishers were actually printed in other countries, and often these books do not indicate where they were printed. If a book does not specify that it was printed in the United States, a library would not know whether it could lend it without being exposed to a copyright lawsuit.
“If the Supreme Court gets this wrong, the cost to libraries and their users could be immense,” said Steven J. Bell, President of ACRL and Associate University Librarian for Research and Instructional Services at Temple University. “It could impact our most basic functions and jeopardize our ability to effectively serve our communities.”
The LCA believes it is critically important for the court to recognize the impact this case could have on library services to the public and consider possible solutions.
“For almost four hundred years, libraries in America have promoted democratic values by collecting and lending books and other materials to their users,” said Maureen Sullivan, President of ALA and organization development consultant. “The LCA has a responsibility to ensure that the Court understands the stakes, here, and does not needlessly strip away fundamental First Amendment rights of the public to lawfully access materials at their libraries.”
Direct to Full Text Brief (50 pages; PDF)