Are We All Copyright Infringers?

I’ve never thought of myself as a copyright infringer. But now I’m not so sure. My possible “crime”: I recently purchased a book in London’s Heathrow Airport to read on a flight back to the United States. While reading it onboard, it occurred to me that someone else I know would find the book interesting. Under a strained – but unfortunately no longer unthinkable – interpretation of U.S. copyright law, bringing the book home with the awareness that I might well lend or give it to that person could be a violation of Section 602 of Title 17 of the United States Code.

Whether or not innocuous behaviors like passing along a book bought lawfully overseas to a relative, friend or coworker constitute copyright infringement depends on the outcome of Kirtsaeng v. John Wiley & Sons, Inc., a case scheduled to be heard by the Supreme Court this week (background here).

Historically, the first sale doctrine has provided strong rights to owners of legitimately purchased copyrighted works. Once you buy a book, music CD, or movie DVD in the United States, you are free to later sell it, lend it to a friend, or donate it to a library or charity without seeking permission from the copyright owner. As the Supreme Court wrote in a 1998 decision, the “whole point of the first sale doctrine is that once the copyright owner places a copyrighted item in the stream of commerce by selling it, he has exhausted his exclusive statutory right to control its distribution.” However, in the 2011 ruling that set the stage for the Supreme Court argument in Kirtsaeng, the Second Circuit held that “the first sale doctrine does not apply to copies manufactured outside of the United States.”

If the Supreme Court arrives at the same conclusion, your ownership rights for copyrighted works you bought overseas and brought back to the United States will change – and not for the better. Why? Because the first sale doctrine affirmatively protects owners of lawfully purchased works by limiting the ability of a copyright holder to impede their downstream actions. In its absence, to comply with U.S. copyright law you would have to keep track, in perpetuity, of all foreign-sourced works in order to avoid inadvertently selling, lending, gifting, donating, or otherwise distributing them without permission from the copyright holder. You would be burdened with this task forever – or at least until the copyrights expire, which is often many decades in the future.

Of course, people can’t be expected to perform this kind of accounting on their personal possessions. Most things we own will part company with us sooner or later. In the long run, all of them will. Under the Second Circuit’s view of copyrighted items manufactured abroad, that parting, whenever it occurs, will often become an act of copyright infringement.

The implications of the Supreme Court’s Kirtsaeng decision could go far beyond imposing an obligation (which almost no one would follow) to track the provenance of personal items. Retailing giant Costco, for example, has filed an amicus brief [PDF] in the case citing the negative impact that upholding the Second Circuit’s ruling could have on its continued ability to offer low-cost goods to consumers. eBay is concerned [PDF] about the possible negative consequences to secondary markets. Goodwill Industries International’s amicus brief [PDF] raises the possibility of reduced donations. Some extremely well-known bookstores are worried [PDF] about a decision that could turn many of their routine transactions into violations.

Another less commonly articulated concern is the possible reciprocal impact on American individuals and American businesses abroad. If other countries were to adopt a view analogous to the Second Circuit’s, then Americans who travel overseas with copyrighted works legitimately purchased in the United States could find their ownership rights dramatically curtailed once they arrive on foreign soil. American businesses could be forced to drop the prices of their exported goods, because buyers would have increased exposure to claims from American copyright holders.

The potential for collateral damage from well intentioned – and, to be fair, in many ways very beneficial – copyright statutes is a consequence of the legislative dynamics at play when they were enacted. In drafting laws, there is a choice between 1) casting a wide net when defining unlawful behavior, and then assuming that the combination of generally reasonable enforcement and a rational court system will protect people who engage in harmless technical violations from being punished, or 2) casting a somewhat narrower net that leaves harmless, reasonable behavior clearly on the right side of the law.

Today’s copyright statutes often reflect the first approach, largely because they embody the concerns of well-organized industry groups of copyright holders, such as the music, movie, and publishing industries. It is completely reasonable for these industries to seek laws that will protect their valuable intellectual property and give them the tools they need to combat piracy and other abuses. But they have little incentive to oppose laws that are too expansive in scope. From their standpoint, it is desirable to have broadly worded statutes providing more flexibility to bring selective enforcement actions.

Copyright users, on the other hand, tend to be a much more diverse group. Use of copyright may be one of the only things in common among the American Library Association, the Association of Art Museum Directors, Costco, eBay, Goodwill, Google, and Powell’s Books – all of which have submitted amicus briefs urging the Supreme Court to reverse the Second Circuit’s ruling. As a result, the voices of copyright users have been more muted when Congress drafts and enacts copyright legislation. That may change in the future. Earlier this month a new coalition called the Owners’ Rights Initiative was launched to “protect ownership rights in the United States.”

Copyright and other forms of intellectual property are vital assets to people, companies, nations, and to the global economy. Creators of copyrighted works deserve to be protected both by law and through appropriate enforcement. But purchasers of copyrighted works have rights too, provided they acquire those works legitimately and use them in a manner respectful of the intellectual property they contain. Copyright approaches that don’t reflect this balance can hurt us all by reducing the ability to engage with our collective cultural heritage.

Last week, a company called Faulkner Literary Rights filed a copyright infringement claim against Sony Pictures Classics. The issue: One of the characters in the movie Midnight in Paris mentions Faulkner by name and voices a brief (and slightly modified from the original) quote from one of his novels. That, apparently, has set off the alarm bells among the guardians of Faulkner’s literary legacy.

I’m sure that Faulkner himself has written something appropriate to describing this situation. In fact, I even have a good quote in mind. But, I’m not going to write it here. After all, if I do, I might be sued for copyright infringement.