The case now before the Supreme Court, Kirtsaeng v. John Wiley & Sons, is a test of the “first sale doctrine,” also known as the “right of first sale,” the “first sale rule,” or the “exhaustion rule.”
Here’s the problem: such a doctrine creates an exception to a copyright holder’s right to distribute his product. Once he has made the “first sale” his interest in that product is “exhausted.” The new owner of the product can do with it as he wishes.
The story is interesting. But keep in mind that I want to talk about Elena Kagan and her likely decision on the matter, as it appears that she will have the deciding vote:
The case revolves around Thailand native Supap Kirtsaeng, who moved to the U.S. for college and found that it was cheaper to buy textbooks back home than here. So he plotted to have his family buy the less expensive textbooks and ship them to the U.S., where he made about $900,000 on eBay, undercutting the publisher’s prices.
The Supreme Court will now review the case, after a lower court ordered him to pay John Wiley & Sons $600,000 for the scheme.
The outcome could be devastating: Whether it be online retailers like eBay and Craigslist, thrift shops like Goodwill and Salvation Army, or regular people who want to hold a garage sale, item owners would be required to get the manufacturer’s permission before reselling the products they own, and the manufacturer could potentially charge a portion of the resale.
And so what do we know about Kagan aside from the fact that Obama nominated her to the court back in May of 2010? Well, we know a lot. We know, thanks to the work of Trevor Loudon, a lot more than we should. And from that, we can safely predict the outcome of this landmark case.
Now, I’m not going to do your homework for you. But, as my good friend Jeff Wright has suggested, I’m going to leave some “breadcrumbs” for you to follow, if you care to.
When Kagan graduated from Harvard Law School (first clue) she immediately went to work as a clerk for Judge Abner Mikva (second clue). Mikva tried to hire Barack Obama when he graduated from Harvard Law (third clue) but Obama turned it down.
Who is Abner Mikva? As far back as 1949, when communist-led students went on strike at the City College of New York, 20 University of Chicago campus “leaders” met to show their support. Among them, Abner Mikva. (fourth clue).
Check pages 544, 550, 551, 563, 565 and 567 in Loudon’s biographical dictionary of Obama’s communist network, Barack Obama and the Enemies Within for more on Kagan. And check pages 567 and 569 for more on Mikva.
So, if you’re still with me, and if Kagan winds up being the deciding vote on this case, guess where she’ll come out? In favor of property rights? Or not? What do you think?