Association of Art Museum Directors, amicus brief
Under the Second Circuit’s reasoning, merely hanging a foreign-made painting on the walls of a museum, buying and importing a sculpture that was created outside the country, or loaning either to another institution for exhibition to the public, could give rise to claims of copyright infringement. The decision below has the potential to disrupt the mission of American museums and interfere with the public’s access to art. Source
American Library Association, amicus brief
The Second Circuit’s decision threatens the ability of libraries to continue to lend materials in their collections. Over 200 million books in U.S. libraries have foreign publishers. Moreover, many books published by U.S. publishers were actually manufactured by printers in other countries. Although some books indicate on their copyright page where they were printed, many do not. Libraries, therefore, have no way of knowing whether these books comply with the Second Circuit’s rule. Without the certainty of the protection of the first sale doctrine, librarians will have to confront the difficult policy decision of whether to continue to circulate these materials in their collections in the face of potential copyright infringement liability. Source
Association of Service and Computer Dealers International, Inc., amicus brief
Presently merchants and consumers must be mindful that the goods they buy and sell are authentic—not counterfeit—and came to market lawfully…But merchants and consumers in the U.S.A. would face an additional burden: Ensuring that the goods, although authentic and placed into commerce lawfully, are of a provenance that permits them to be freely bought and sold in this country…Because most technology products are manufactured abroad and contain copyrightable elements, trade in these products would be severely restrained. Government agencies, schools, hospitals, consumers and businesses of every size and type would suffer supply shortages and increased costs for a wide range of mission-critical items— including computer servers, networking products, laptops, tablets and other technology goods. The members of ASCDI/NATD and many other merchants would be seriously harmed and jobs lost as a result. Source
Goodwill Industries International Inc., amicus brief
By limiting first-sale protection to only those items manufactured in the United States, the Second Circuit puts the onus of investigating the origin of goods in the secondary market on the purchaser—or as with Goodwill—the recipient of a donation. That approach diverts critical resources provided by the donating public to assist Goodwill in accomplishing its mission, and would require the redirection of Goodwill’s limited resources to internal policing and investigative activities. Source
Jodi Griffin, staff attorney at Public Knowledge
The impact of this decision is many times worse when you consider just how many products contain copyrighted works in today’s world. Toys for Tots may be illegal because toys can have copyright-protected designs and are often manufactured abroad. Owners of foreign-made cars will be unable to resell them because cars often contain computers that run copies of copyright-protected programs. Libraries will only be able to stock U.S.-made books on their shelves. Even producers of non-copyrighted goods can seize control by simply putting their good in foreign-made packaging with a copyright-protected design on it. Of course, this decision also gives copyright owners a perverse incentive to move all of their manufacturing abroad to get perpetual distribution rights, so consumers may find it harder and harder to buy American-made goods anyway. Source
In a recent interview with PW, lawyer Jonthan Band, who authored the LCA brief, said a ruling upholding the Second Circuit’s interpretation of First Sale would be “a blow to the heart of the library enterprise,” because it would mean libraries conceivably could not lend books that were printed abroad. “Not only books from foreign publishers,” Band explained, “but American-published books that are merely printed overseas.” Source
Kevin L. Smith, Director, Copyright and Scholarly Communication at Duke University
If the Supreme Court finds in favor of John Wiley, it could mark a transition to “public lending licenses” or other differential pricing of books sold to libraries. It could also shut down the used-book and secondhand textbook markets. But those would just be the anticipated consequences, those expected and desired by the plaintiffs. Unintended consequences could be even more far-reaching. Museums are worried that they will not be able to display works of contemporary art from other countries. And your car, to pick just one example, probably contains copyrightable software, which could allow automobile manufacturers to take exclusive control of the used car market. Without really meaning to, it seems, the Second Circuit has raised the possibility of allowing copyright law to become the vehicle for a radical restructuring of the consumer economy in the U.S. Source
Marvin Ammori, scholar, lawyer and activist
The Supreme Court will soon hear a case that will affect whether you can sell your iPad — or almost anything else — without needing to get permission from a dozen “copyright holders.” Here are some things you might have recently done that will be rendered illegal if the Supreme Court upholds the lower court decision:
- Sold your first-generation iPad on Craigslist to a willing buyer, even if you bought the iPad lawfully at the Apple Store.
- Sold your dad’s used Omega watch on eBay to buy him a fancier (used or new) Rolex at a local jewelry store.
- Sold an “import CD” of your favorite band that was only released abroad but legally purchased there. Ditto for a copy of a French or Spanish novel not released in the U.S.
- Sold your house to a willing buyer, so long as you sell your house along with the fixtures manufactured in China, a chandelier made in Thailand or Paris, support beams produced in Canada that carry the imprint of a copyrighted logo, or a bricks or a marble countertop made in Italy with any copyrighted features or insignia.
…Ultimately the Court must choose between bringing copyright law into the Internet age or consigning us all to the dark ages. I hope they choose wisely. Source
Mike Masnick, CEO and founder of Techdirt
Personally, I think that could be a disaster. Depending on the ruling, it could drive a lot more manufacturing offshore, as companies seek to remove first sale rights (this would very much depend on the specifics — as the appeals court ruling in the Omega case would limit the ability to do this, but the appeals court ruling in Kirtsaeng would almost certainly create massive incentives to move manufacturing out of the US). Source
Patrick Hightower, Policy Coordinator at Entertainment Consumer Association
This does not mean the video game industry will be completely immune from this decision. Even with this more limited reading of the lower court’s decision, private game imports could be a violation. If you are a gamer that buys import games from Japan, that practice could be threatened. However, that practice has already been greatly curtailed by region locking hardware. Source
Retail Litigation Center, Inc., National Association of Chain Drug Stores, American Free Trade Association, International Imaging Technology Council, Quality King Distributors Inc., amicus brief
If the interpretation of the first sale statute by either of these courts is allowed to stand, the retail industry will have little confidence to stock authentic goods acquired from an independent exporter, importer, or distributor, and less ability to protect themselves against the threat of infringement liability. And consumers will unnecessarily pay higher prices and suffer losses of competition for reasons wholly unrelated to the expressive value of a copyrighted work. Source
Steven J. Bell, President of Association of College and Research Libraries and Associate University Librarian at Temple University
If the Supreme Court gets this wrong, the cost to libraries and their users could be immense. It could impact our most basic functions and jeopardize our ability to effectively serve our communities. Source
Scot Wingo, CEO of ChannelAdvisor Corp
While the amount of these goods is probably relatively small, the real pain could be in enforcement. Imagine if eBay or Craigslist had to either police items sold that have international origin, or, even worse, had to verify that second-sale items were not of international origin. If the burden on the marketplaces was high enough, they could decide to just stop selling this type of [product]. Source