The Association of Research Libraries (ARL) has joined the American Library Association (ALA) and the Association of College and Research Libraries (ACRL), who 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. The LCA asks the Court to be true to the values of the 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 US. This 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 has asked the Supreme Court to reverse the Second Circuit and apply the first-sale doctrine to all copies manufactured with the lawful authorisation 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, 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 pulled-out herself from the case due to her participation in the litigation when she was Solicitor General, but Justice Kagan will participate in Kirtsaeng.
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 US, a library would not know whether it could lend it without being exposed to a copyright lawsuit.
The LCA believes it is critically important for the court to recognise the impact this case could have on library services to the public and consider possible solutions.
The Library Copyright Alliance (LCA) consists of three major library associations—the American Library Association, the Association of Research Libraries, and the Association of College and Research Libraries. These three associations collectively represent over 300,000 information professionals and thousands of libraries of all kinds throughout the US and Canada.
