My Kind of Country

Country music from a fan's point of view since 2008

Tag Archives: Supap Kirtsaeng

U.S. Supreme Court strikes a victory for the used music market

copyrightFor the past few months, I’ve been reading about Supap Kirtsaeng, a Thailand-born student at Cornell University, and how his idea to offset the costs of college tuition led him to the United States Supreme Court. Kirtsaeng made over $100,000 by selling used textbooks online. These textbooks were purchased by his relatives in Thailand at cut-rate prices, much cheaper than they can be bought for in the U.S.  He bought books that were printed and sold legally overseas. He resold them in the States for a profit. The publisher of the textbooks, John Wiley and Sons, Inc., sued and won a $600,000 judgment against Kirtsaeng, arguing he violated fair use since the copyrighted material was sold outside the U.S. The college student and his lawyer held he did not violate fair use because he bought the books through a third-party – to whom Wiley and Sons had licensed the low-cost copyright – and appealed to the high court.

And it all sounded to me like that old first-sale doctrine argument we heard back when some recording artists got their breeches twisted over the sale of used CDs and vinyl records.

Those old enough to remember know the issued of reselling used media caused a stir in the mid-’90s when used CDs started saturating the market and caused a panic at the labels, who quickly issued cease and desist letters to the record stores, ordering them to stop selling used products. The Federal Trade Commission got involved and the labels backed off, but not before some recording artists – most notably Garth Brooks – could weigh in on the subject. Garth went so far as refuse to release new music to record store chains that sold used CDs. What I’m sure was meant to be his championing of the underdog – the “little guy” – turned out to be one of the first of many times Garth made a jackass of himself in the media, especially since he was railing against what was already a nearly nine decades-old precedent settling the argument of “licensing” versus “sale” of a copyright when you buy a book, vinyl record, DVD, or mp3.

Which is why I was surprised at first to learn that the Supreme Court would even be hearing yet another case about this. But there was a difference here. The big issue regarding The Textbook Case is that the product was manufactured outside the United States. Did U.S. copyright law – particularly the first sale doctrine – apply to works made outside U.S. jurisdiction? The justices say so, in a 6-3 vote last week, overturning the district court’s decision. And while their opinions hinged more on giant retailers like Costco and their ability to sell goods made outside the country, it trickles down to the used music marketplace.

If the high court had upheld Mr. Kirtsaeng’s conviction and fines, the availability of and our ability to purchase used (read: reasonably priced) copies of older and out-of-print albums would dramatically drop. Rejecting third-party copyrights from first-sales exemptions wouldn’t completely shut down’s used CD market for U.S. customers – providing we were buying American-bred products. But Bear Family and some other great independent labels could have faced an embargo. So I say the court’s ruling is a victory for the audiophiles even more than the general consumer.

Maybe this will be the final say on the matter, with the court extending the first-sale doctrine’s reach to globally-produced products. Or maybe just until there are extraterrestrial copyrights to legislate.