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eBay Seller Turns to Supreme Court Once Again

Many eBay and online sellers firmly believe that if they own an item, they have the right to sell it no matter what under the First-Sale Doctrine. It’s not always that crystal clear to brands and copyright holders, however, as evidenced by a case called Wiley v. Kirtsaengthat made it all the way to the Supreme Court.

But what happens when an eBay seller wins a case involving the First-Sale Doctrine? That can be even more uncertain, and the highest court in the land weighed in this month, with the same parties, in Kirtsaeng v Wiley.

The U.S. Supreme Court heard the initial case concerning so-called gray markets, where copyrighted works that have been legally purchased at a discount overseas are then resold without the rights holder’s permission.

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Wiley sued Thailand-born Supap Kirtsaeng, a U.S. student who began reselling college textbooks purchased overseas at a discount to help pay for school. John Wiley & Sons, the publisher of those books, had been selling in Thailand through a subsidiary, and sued Kirtsaeng for copyright violation.

A court in New York rejected Kirtsaeng’s first-doctrine defense, with the judge ruling that the doctrine does not apply to goods produced overseas and imported to the United States, a decision upheld by the Second Circuit Court.

At the time, eBay hailed the high court’s decision to review the case, worried the lower court rulings could jeopardize its business.

The Supreme Court rejected publisher’s claims in gray-market copyright case – see the analysis on the SCOTUS blog from 2013.

But next up was, could the defendant get Wiley to pay his legal fees? The SCOTUS blog again analyzed the case – it said the Supreme Court ruled that the lower courts could deny the request, but told the lower court to reconsider if there were reasons why Kirtsaeng might deserve fees.

It’s difficult to get the attention of the highest court in the land – the defendant most likely had no idea what he was getting into when he began selling books on eBay.

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Ina Steiner

Ina Steiner is co-founder and Editor of EcommerceBytes and has been reporting on ecommerce since 1999. Send news tips to

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