Is Our Right to Sell In Jeopardy?

I’ve recently come across some troubling news. There is a case being fought right now (Kirtsaeng v. John Wiley & Sons) in which someone who purchased goods made in Thailand and sold them on eBay is now being sued by the company for “copyright infringement” simply for doing so. The gentleman, Supap Kirtsaeng, countered that he had done nothing wrong, citing the first-sale doctrine as his reasoning. For those of you that don’t know, the first-sale doctrine was recognized by the Supreme Court in 1908 and basically says that copyright laws, as they apply to the sale of items, are only applicable for the first sale. If the item goes up for re-sale, it is no longer a copyrighted product. Unbelievably, the US Court of Appeals has upheld the lower court’s ruling in the case, which was that anything manufactured overseas is not subject to the first-sale principle. Only American-made products or “copies manufactured domestically” were.

How did this case come about? Kirtsaeng is a native of Thailand and is attending college here in the states. When he was in Thailand last, he noticed that the textbooks he was using were substantially cheaper there, he enlisted the help of his friends and family to buy the books and ship them to him. He then sold the books on eBay and according to court documents, he made over $1.6 million re-selling them. My guess is that the company heard of his good fortune and wanted a piece of the action. He only did what others have been doing for quite some time now, buying items and re-selling them for a profit. His story sounds pretty familiar, doesn’t it? It could be any of our story about how we got into selling online!

This doesn’t bode well for us sellers. If you think about it, most of the items we sell on a day-to-day basis are manufactured overseas. From our old phones, to furniture, cars, and everything in between, few items are made here in the US. If he loses this case and the Supreme Court rules in favor of the company, it will set a dangerous precedent and leave all of us, as well as the sites we use, open to the very real possibility of going out of business. Can you imagine if you weren’t allowed to sell anything that wasn’t made here in the US? I know over half of my inventory would be ineligible for sale!

EBay is so worried about what this could mean for them that they’ve posted an announcement to their boards asking people to join a movement to take action and help protect our rights as sellers. I must say that I like where their head is at. The Supreme Court will be hearing the oral arguments for the case at the end of the month, so now is the time to take action. If nothing else, at least keep your eyes and ears tuned in to hear what’s going on with this case. I know I will.

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