The Kirtsaeng Case: It's Complicated

Kirtsaeng v. John Wiley & Sons is an interesting case more for what it points to than what upon decision will say.  It points to big chinks in the armor of "international copyright law," i.e. the Berne Treaty that extended U.S. copyright law to signatories whose arms were twisted to sign in exchange for trade agreements.  

The especially tricky aspect of this case is how U.S. law is playing out on an international stage.  When the Berne Amendment extended U.S. Copyright law to signatories, no one thought about how inappropriate it was to extend U.S. copyright law, already content-owner heavy, onto developing nations.  In the 19th century, the United States was the single most infringing country of British copyright in the world.  As a developed country, in the 20th century, we hardened our copyright laws grossly in favor of content owners.  Technology disrupted that paradigm, the Internet especially.  Given the Internet's international reach together with a global economy, it is almost inevitable that a case such as this one would come forward.

This and many other cases coming down in the last several months are to copyright law what anomalies are to a Kuhn notion of scientific revolutions: an indication that it is time to reform copyright law overall.  At the risk of repeating myself in this blog space, copyright law desperately needs to be rebalance incentive and innovation for economic, cultural and political reasons.  
 
One measure of that rebalancing would be to recognize in international treaties that developing nations should have provisions that differ from developed countries.  For example, it might contain licensing provisons with low price points and even broader fair use application.  These provisions would give developing countries a chance to "catch up" economically by borrowing more liberally from protected works than might be allowed in a developed country where the content owner can expect remuneration as incentive for their creations (but limited in scope, terms and damages by comparison to the law as it is written today).  

That practice would allow the selling textbooks less expensively in developing countries (and perhaps in less economically advantages schools in the U.S. too, but now I am getting to far afield from law into social policy.)  First sale doctrine should apply both abroad and in the U.S. but only for the individual user, and not as a means to create profit for that user as a secondary business.  What is not clear to me in this case is whether the defendant was simply selling his own books, or whether he had a side business; my sense is that the facts point to the latter, which -- at the risk of alienating my many compatriots in the copyright world -- I think should be actionable.

Case law represents default policy in the United States.  As that observation pertains to this case it is unfortunate because a decision would be far from accomplishing all of these other goals.  Citizens of the world who recognize the larger economic, political and cultural stakes wrapped up in copyright would do well to see this and other cases in a broader light and begin to advocate for reform that makes sense both in our country and internationally.