Supreme Court to Consider Copyright Case

Despite a hurricane that threatens much of the Northeast, the U.S. Supreme Court opened as usual this morning. 

Justice John Roberts, just named as a "Brave Thinker" by The Atlantic Magazine for his role in upholding the Affordable Care Act earlier this year, is defying a storm that has caused the shutdown of most federal government agencies, transportation and many businesses from Washington D.C. up to Connecticut. The entertainment industry in the region will grind to a halt in reaction to 80 mile-per-hour winds, but Hurricane Sandy doesn't have standing at the high court. 

At the Supreme Court, the show will go on. "It was the decision of the chief justice in consultation with court officials," a court spokeswoman told Reuters. 

On tap for Monday is a hearing in a case that has attracted considerable Hollywood interest. The high court will consider whether consumers have the right to re-sell copyrighted works such as movies, songs and books imported domestically. 

The case is Kirtsaeng v. John Wiley & Sons, Inc. Supap Kirtsaeng, the appellant, is an immigrant from Thailand who was sued by the book publisher after he began selling textbooks on eBay. 

He defended himself by pointing to the "first-sale doctrine," the part of copyright law allowing those who have purchased copies of creative works to re-sell these goods without the authority of the original copyright owner. 

Kirtsaeng lost at a jury trial and was ordered to pay $600,000 for willful infringement. He lost at the 2nd appellate circuit too, as the publisher pointed to sections of copyright law intended to curtail illegal importation of copyrighted works. 

The MPAA and the RIAA have lined up behind John Wiley in an amicus brief, writing that "unauthorized importation of copies of protected works made overseas and intended only for sale in a foreign market can undercut or eliminate the economic benefit that Congress intended to provide under the Copyright Act." 

Kirtsaeng's attorneys also warn of implications should the Supreme Court uphold the lower courts' rulings. They say that copyright holders are becoming aggressive and that a decision to allow aggressive restricting of resales of foreign-made goods would imperil Netflix, open questions whether foreign-made copies can ever be imported and lead companies to send their manufacturing abroad. 

"The natural response to a parade of horribles like this is to roll one's eyes and blithely insist, 'It'll never happen,'" says the appellants' legal brief. "But if a major international publisher is willing to doggedly pursue a graduate student who sold textbooks - and crush him with a $600,000 judgment for a willful violation and an order to turn over his computer - there is little assurance that others will exercise restraint where the rents to be extracted are far richer and the pockets far deeper." 

Justice Roberts is proving his mettle by not delaying consideration of the case as a storm rages. Other court systems in the Northeast have decided to lock up for the wind and rain.