Corinne Lederhouse, a student in Jon Pfeiffer’s Spring 2015 Mass Communication Law class at Pepperdine University, wrote the following essay in response to the prompt: Discount Books. While studying abroad in Buenos Aires, Nick met Pablo. Pablo told Nick that he, Pablo, was able to legally purchase textbooks for extremely discounted rates, usually $10 to $15 per book. Nick cut a deal with Pablo to re-sell them to Pepperdine students in Malibu. Pablo bought and shipped books to Nick for $40. Nick sold the books for $150-200 each. One afternoon, Nick received a cease and desist letter from the publisher alleging that Nick was infringing upon their copyrighted material. Is Nick in violation of copyright law?
If you ask me, Nick is not guilty of copyright infringement. In Buenos Aires, his friend Pablo legally bought discounted books. Pablo sold and shipped the books to Nick who sold them at high prices to Pepperdine students in Malibu. Way to go Nick! He's making a ton of cash without doing any substantial work. Nick should be sure to thank Pablo later. After receiving a cease and desist letter from the publisher, Nick shouldn't be too worried.
Typically a cease and desist letter is used to threaten the person with legal action if they don't stop the behavior. So he can keep selling the books, he'll just probably get sued. Which according to a previous Supreme Court case decision would not be successful for the publisher.
The Supreme Court Case of Kirtsaeng v. John Wiley & Sons is an example of a similar copyright case. Mr. Kirtsaeng was a college student when he began receiving textbooks from his family and friends who bought them inexpensively in Thailand. To pay for his education, Kirtsaeng sold these books in America at a much higher price. In the case, Kirtsaeng was sued by the textbook publisher John Wiley & Sons for copyright infringement. The court ruled in favor of Kirtsaeng on the basis that imported copyrighted goods followed the same rules as those bought in the U.S. the owner could do what they liked with them. This is an example of the "first sale doctrine", that buyers of copyrighted goods from abroad are free to lend or sell them however they wish.
If the publishers of Nick's textbooks tried to sue him for copyright infringement, there would be the same outcome. Nick is legally allowed to sell the books at whatever price he wants, even though they cost much less in Buenos Aires. As the owner of legally obtained goods he can do whatever he wants with them, including pay off his outrageous student loan debt, courtesy of Pepperdine University. (Just kidding, he'll be haunted by debt for the rest of his life).
Corinne is a senior at Pepperdine University majoring in public relations and religion.
Jon Pfeiffer is an experienced entertainment and copyright trial attorney practicing in Santa Monica. Jon is also an adjunct professor at Pepperdine University in Malibu, California where he teaches Media Law. COM 570 covers First Amendment issues as well as copyright, defamation and privacy.