Textbook publisher Wiley & Sons loses Supreme Court copyright case

JISHOU, HUNAN — Selling textbooks printed abroad in the USA does not infringe the copyright of the books’ publisher, the Supreme Court ruled yesterday in a 6-3 decision. The decision means a Thai entrepreneur can legally resell textbooks in the States.

The adversaries in this case were John Wiley & Sons, which publishes the text I used for AP Physics for many years, among others, and Supap Kirtsaeng, a Thai student who found a clever way to make money. He bought Wiley’s texts legally in Thailand, where the prices are lower than in the States, and then resold them (legally) in the USA for a tidy profit, while still undercutting Wiley’s American retail prices.

(Which is not hard, considering how high those prices are, especially for science, technology, engineering and math — STEM — texts. One book alone might cost $150 or more.)

As you can imagine, Wiley was not pleased, and took Kirtsaeng to court, contending that he was violating its copyright by reselling books intended for Thai consumers in the USA. Two lower courts found in Wiley’s favor, but the Supreme Court overturned those decisions, finding no clear provisions in existing copyright law that would make Kirtsaeng’s enterprise illegal.

At issue was the “first sale” doctrine, which presumes that the buyer of a copyrighted item can resell the item (or give it away) without the permission of the copyright holder. In other words, it’s legal to resell or give away books, CDs or DVDs. You don’t need to ring up Doubleday or Disney to get their OK first.

Siding with Kirtsaeng by filing amicus briefs were libraries, used booksellers, retailers, tech companies and museums, who argued Wiley’s interpretation of the law would seriously hamper their activities.

Wiley argued that as the publisher it had the right to set geographical restrictions on the sale of its products. Books printed in Thailand, for example, could only be bought and sold in Thailand and other markets as specified by Wiley. It initially won on that contention, but a majority of the Justices said such an interpretation flew in the face of centuries of common-law doctrine.

Whether the decision will bring textbook prices down remains to be seen. The publishers profit from the sale of textbooks (and their interminable “new” editions that come out almost annually) to an essentially captive audience. Schools and professors choose the texts, and students have to buy them.

Meanwhile, the publishers make it difficult for sympathetic teachers to save students money. For example, while a physics teacher, I found that Little Brown, which published Paul Hewitt’s Conceptual Physics college text, made it a point to reclaim all surplus “old” editions from booksellers when issuing revised versions. This policy made it nearly impossible for our school to buy a set of used texts to save students money. We had no choice but to buy the new, more expensive edition, which was 97% the same as the last one.

Sure, the economy of scale plays a big part in textbook publishing. The potential market is relatively small, and there a bewildering number of competing texts for each subject. So, a particular text may only have a few tens of thousands of buyers. Publishers, then, seem to feel justified in charging high prices to make a profit. How much of a profit, I can’t say, but Wiley must have felt threatened enough to go after Kirtsaeng.

Wiley was trying to extract every last ounce of blood from the turnip (students) by going after Kirtsaeng, who, after all, was not pirating anything. He was buying low and selling high, taking advantage of the market conditions set up by Wiley itself. Too bad, Wiley, so sad.

We can expect the publishers will now start lobbying their favorite congress-critters to amend copyright laws to protect their revenue stream. They’ve got nowhere else to go.

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