If you're a librarian and you've been following Costco v. Omega Watch from the start, then I award you extra credit. This case, which involved Costco's practice of buying Omega's watches from abroad and selling them in their stores at huge discounts as loss-leaders meant to attract shoppers, was predicated on whether or not items manufactured overseas enjoyed the same "First Sale" protections that items produced in the United States- i.e., that once you bought something, it was yours to lend, give away, or resell as you saw fit. The Doctrine of First Sale therefore not only permits the existence of used book, game, and music/video stores, but it is also the portion of copyright law on which libraries rely in order to lend materials to patrons.
So needless to say, it was a little unnerving to watch this case make its way up to the 9th Circuit, where it was ruled that foreign works did not in fact enjoy the same First Sale protections as items manufactured domestically. At the time only a few librarians were really paying attention to this, as A. It involved watches, not books and B. Surely the intent of Omega's lawsuit was meant to circumscribe the actions of another for-profit company and not limit the lawful operations of such institutions as libraries. Even when the news broke that Costco would appeal the case to the Supreme Court I remember getting eye rolls and shrugs from my colleagues when I mentioned the case and its potential impact on our very large collection of foreign monographs.
As it turned out, the SCOTUS affirmed the 9th Circuit's ruling in a 4-4 split decision. Because it had not been a majority ruling, however, its applicability beyond that specific case was negligible. So score one for the status quo? Not so fast. For no sooner did observers point out that this decision left the field ripe for another similar lawsuit than the 2nd Circuit ruled once again that the Doctrine of First Sale did not protect the resale of foreign-produced items-- only this time the items in question were not watches, but books.
Supap Kirtsaeng had founded a niche business whereby he would purchase textbooks published by John Wiley in Asia, import them into the United States, and resell them for a profit. Despite the fact that Wiley had marked these books for limited international distribution only, Kirtsaeng insisted that because the items were legally purchased overseas, the Doctrine of First Sale still applied. Wiley disagreed, sued, and won. Although the 2nd Circuit acknowledged the murkiness of the law and predicted that its ruling would no doubt generate some controversy, nevertheless it found that First Sale protections could not be assumed for items that were manufactured overseas.
Unlike Costco v. Omega Watch, a lot of librarians took note of 2nd Circuit's ruling in John Wiley and Sons v. Kirtsaeng. To my profession's credit, I see a lot less hand-waving and a lot more hand-wringing this time around, but is it enough? With Fair Use itself being called into question in the ongoing Georgia State University copyright case, you don't have to be paranoid to wonder whether there isn't a concerted effort going on to rig the table in favor of a new licensed business model for content where every time a patron or user accesses a given item, money changes hands. Publishers have made it clear that they believe they deserve a cut from the used game/book/CD/DVD market for years, and now that they have the technological wherewithal to make that happen it's just a matter of squelching those pesky laws and legal exemptions by which alternate business models are currently suffered.
Whether or not libraries are being deliberately targeted right now is quite beside the point, because by then it will be way too late for us to do anything about it. Now is the time for libraries and librarians to mobilize, educate, and advocate. A great introduction to copyright, its intent, its limits, its abuses, and its exemptions is Teaching Copyright, a collection of readings, links, and other instructional materials collated by the Electronic Frontier Foundation. Find out if your library has a copyright guru, and if it doesn't either ask why not or become one yourself. Share what you know with your colleagues. Libraries depend on a fair reading of copyright law and vigorous exercise of its many exemptions for their our existence, which means every librarian is a part of this struggle, whether they know it or not! Make sure they are aware of what's at stake here.
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