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Your Garage Sale could be at risk

garage saleIt might be illegal to sell those treasures.

The excitement of the hunt for the perfect item at the flea market or the thrill of selling your relative’s antique lamp at a great price could soon be dimmed by the Supreme Court of the United States. 

On its agenda this fall is the case of Kirtsaeng v John Wiley & Sons, which looks at the first-sale doctrine found in copyright law allowing you to buy and then sell goods such as electronics, books, artwork, cars and furniture without first getting permission from the copyright holder of those products.

The case began when Supap Kirtsaeng, a native of Thailand, was a student at Cornell University. Kirtsaeng discovered that his textbooks, published overseas by Wiley & Sons, were much cheaper in Thailand than they were in Ithaca, NY, so he asked his Thai relatives to buy the books and send them to him in the US. He then sold the books on eBay, earning about $1.2 million.

Wiley & Sons sued him for copyright infringement, and he answered that the first-sale doctrine allowed him to sell the books without asking permission of the publisher. The lower court said Wiley was right; Kirtsaeng needed to consult with them before the sale because the books were published abroad.

In August of 2011, the U.S. Court of Appeals followed the lower court’s decision that goods manufactured overseas are not controlled by the first-sale principle.  If the US Supreme Court agrees with the Court of Appeals there could be strange consequences such as:

  • Manufacturers would have everything made overseas so they could control and profit from each resale.
  • Sellers would stop buying and selling foreign made goods if they had to get permission first.
  • The copyright holder would want a piece of the sale.
  • Businesses that rely on the secondary marketplace such as antique malls, flea markets, garage sales, e-Bay or Craigslist might be at risk as sellers stopped offering foreign made or questionable goods for sale.

Millions of Americans could be affected by this decision and the only remedy would be for Congress to force a change in the law. Until then, however, our Saturday morning quest for the unusual and unique item or the thrill of hosting a profitable garage sale may be in jeopardy.

Categories: Copyright, Intellectual Property

Photo of Nicholas M. Oertel

focuses his practice in the areas of Michigan non-property tax disputes, business entity selection, corporate transactions, and information technology.

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