As you know, the ASCDI filed a brief with the U.S. Supreme Court in the Kirtsaeng v. Wiley case (in favor of the right to buy and resell legitimately purchased products). There are some really good articles in the Wall Street Journal online and on CNN online about the issue.
I told you that I was invited to hear the arguments at the Supreme Court. However, Hurricane Sandy had different plans for me and I had to cancel my trip. Instead I had to settle on reading the transcript of the case, which you will find at this link on our web site. The Supreme Court will rule on this case by mid next year.
Reading the transcript is never a sure way of predicting what the Justices will do. However, my overall impression based on the comments and questions of the Justices is that the Court would like to keep give owners the continued right to resell products, yet at the same time protect the rights of the trademark holders. Justice Ginsburg started out by asking whether copyright protection ends only when an item is sold domestically or if it ends even if it is sold overseas. Justice Breyer mentioned the unintended consequences that might occur if the Court found against the right to resell. Justice Kagen brought up the issue of “lawfully made [in the US]” which to me indicates that the Justice is thinking more along the lines of stopping “counterfeit” yet allowing owners to resell goods made outside of the U.S.
The best thing that happened, in my opinion is that Malcolm Stewart, the Deputy Solicitor General for the U.S. Department of Justice who filed a brief in support of Wiley, the trademark holder seemed to reverse himself when he answered Justice Alito that the worse outcome would be restricting the resale of foreign made goods.
Today, the Los Angeles Times published an editorial in support of the right to resell and concluded that, “The gray market may be a problem for manufacturers, but the Supreme Court shouldn’t stretch copyright law to solve it for them.”
We too hope that the Supreme Court takes this opportunity to defend owners’ rights and clarify that if you buy something, you own it. We believe when you purchase something you should have the right to sell it, lend it, or donate it, regardless of whether that good was made in the US or elsewhere.
And we are prepared to take the fight where ever it leads us, including the Congress of the United States.
Thank you for your continued support and membership in the ASCDI and the eTN Trading Network. It is what enables us to fight for you.
Joe Marion
ASCDI President