"It means that it's harder for consumers to buy used products and harder for them to sell them," said Jonathan Band, an adjunct professor at Georgetown University Law Center, who filed a friend-of-the-court brief on behalf of the American Library Association, the Association of College and Research Libraries and the Association for Research Libraries. "This has huge consumer impact on all consumer groups."
"It would be absurd to say anything manufactured abroad can't be bought or sold here," said Marvin Ammori, a First Amendment lawyer and Schwartz Fellow at the New American Foundation who specializes in technology issues.
The case stems from Supap Kirtsaeng's college experience. A native of Thailand, Kirtsaeng came to America in 1997 to study at Cornell University. When he discovered that his textbooks, produced by Wiley, were substantially cheaper to buy in Thailand than they were in Ithaca, N.Y., he rallied his Thai relatives to buy the books and ship them to him in the United States.
He then sold them on eBay, making upward of $1.2 million, according to court documents.
Wiley, which admitted that it charged less for books sold abroad than it did in the United States, sued him for copyright infringement. Kirtsaeng countered with the first-sale doctrine.
In August 2011, the U.S. Court of Appeals for the Second Circuit upheld a lower court's ruling that anything that was manufactured overseas is not subject to the first-sale principle. Only American-made products or "copies manufactured domestically" were.
"That's a non-free-market capitalistic idea for something that's pretty fundamental to our modern economy," Ammori commented.
If the Supreme Court does rule with the appellate court, it's likely that the matter would be brought to Congress to force a change in law. Until then, however, consumers would be stuck between a rock and a hard place when trying to resell their stuff.