January 6, 2012 | By Rebecca Jeschke

EFF Asks Supreme Court to Tackle Important First Sale Questions

EFF joined Public Knowledge and U.S. PIRG today in urging the Supreme Court to tackle Kirtsaeng v. Wiley, a case with the potential to fundamentally change the way the right of first sale works in the United States.

The first sale doctrine allows you to resell, lend, or give away the products that you own that may be copyrighted or contain copyrighted materials.  It’s what protects used bookstores, libraries, garage sales, and eBay, among many other things.  However, some copyright owners are trying to undercut first sale rights by claiming the law only covers goods made in the United States.  That would mean anything that is made in a foreign country and contains copies of copyrighted material – from the textbooks at issue in the Kirtsaeng case to hair care products with copyrighted labels – could be blocked from resale, lending, or gifting without the permission of the copyright owner.  That would create a nightmare for consumers and businesses, upending the secondary market for products and undermining what it really means to “buy” and “own” tangible goods.

The first sale issue is one that has concerned us for a long time, and as new technologies make it easier to distribute goods around the world, the questions will only become more urgent.  We hope the Supreme Court will take Kirtsaeng and clarify Americans’ important first sale rights


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