 Thanks so much. Good afternoon, everyone. And we're starting at one sharp, so if folks log on a little late, that's too bad. But we've got a lot to talk about. So my name's Brandon Butler. I am the Director of Public Policy Initiatives here at the Association of Research Libraries. And we have the pleasure of three really wonderful experts who are going to speak with us today a little about this Kurtzang v. Wiley case, which is pending in the Supreme Court. So first, let me tell you a little bit about the folks that are going to be joining us. Duke University's first Director of Copyright and Scholarly Communications. Kevin's principal role is to teach and advise faculty, administrators, and students about copyright, intellectual property licensing, and scholarly publishing. Kevin's a librarian and an attorney, double, double threat. He's admitted to the bar in Ohio and North Carolina and holds a graduate degree in religion from Yale University and my, my degree in philosophy. So we'll do a debate at a different webcast. At Duke, Kevin serves on the University's Intellectual Property Board and Digital Futures Task Force, and he convenes the Open Access Advisory Panel. He's currently the chair of the ACRL's Research and Scholarly Environment Committee and serves on the Spark Steering Committee. He's highly regarded by me and many weblog on Scholarly Communications, which you can find at Duke's Copyright and Publications in academia. And he is a frequent speaker on those topics. So Kevin's our first speaker. Our second speaker is Jonathan Bant. Jonathan helps shape the laws governing intellectual property and the Internet through a combination of legislative and appellate advocacy. Jonathan represents Client Act and other federal and state statutes relating to intellectual property and the Internet. He complements this legislative advocacy at the University Law Center and has written extensive hundred articles to Harvard for undergrad and Yale Law School for law, for his JD. He was a partner at Morrison and Forrester, affectionately known as MOFO here in DC. And now he is a solo practitioner who is, most importantly, of counsel to the Library Copyright Alliance. And the primary author has developed copyright education programs and related services to help ALA members understand decisions and workshops on copy, author of several articles. Harry was a librarian at the University of Arizona and related copyright issues. And she informed the campus community about pending copyright legislation and developed an advocate media arts from the University of Arizona. And as I mentioned is the author of two really. Now let me give you a little bit of an idea of what we're going to talk in general of the first sale right, whatever. Finally, you'll hear from Carrie and who would then turn around and sell them in the U.S. in violation of Wiley, but they were printed in Thailand and sold here in the U.S. And that is why we are here today. This very strange confluence of facts. And with that, I'm going to turn it over to Kevin to tell us why is all this stuff a problem. All right. Thank you. Thank you, Brandon. And I'm looking forward to that debate. I also have an undergraduate degree in philosophy. So we'll be, we'll be, well, I'm not so sure, well matched. But anyway, so what's the problem? I'm just going to take a few minutes to look at the legal structures. And in this case, it's the interrelation between different parts of the copyright law that have created the problem that the Supreme Court has to deal with in Kurtzog. The most basic thing to remember is that copyright is a bundle of exclusive rights. And one of those exclusive rights is the right to distribute the copyrighted work. That's the right that Mr. Kurtzog is accused of having infringed. And the language is very simple. The owner of the copyright has the exclusive right to do or to authorize the distribution of copies of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending. And of course, lending, which is part of the distribution right is the real issue for libraries. It's not for Mr. Kurtzog because he was accused of resale. But it's the real issue for libraries. As all librarians know, the all of the rights in the copyright act are subject to exceptions. And one of the most important is the limitation on the exclusive right to distribute. That's called first sale. The first sale right is or the first sale doctrine is an exception to that exclusive right to distribute the copyrighted work. And what the first sale doctrine says is that the owner of a particular copy of a work that is lawfully made under this title, and that language is very important, may sell, lend, or rent that copy without permission. And that's what libraries in the United States are founded on. And it also says that we made that we, the purchaser, the person who owns a lawfully made copy, may display the copy to persons present at the place where that copy is located. And by the way, that's extremely important for museums and raises an issue that if the Second Circuit's opinion in Kurtzog is upheld, there could be problems for museums as well as libraries, as well as lots and lots of other people. So this doctrine of first sale is what allows us to lend lawfully made copies of a work that we purchase for our libraries. It's what allows students to resell their textbooks after their classes are finished. It's what allows us to resell, lend, loan, all kinds of material, anything that is subject to copyright. Another way that we refer to this, to emphasize that it is an exception to the distribution right, is we often say that right of distribution and the right of public display, those exclusive rights are exhausted after the first sale of a particular copy. So sometimes this is referred to an international law, this is referred to as the doctrine of exhaustion. But all that means is that the distribution and public display rights, which exclusively belong to the copyright holder are exhausted. Once there's been a lawful sale of the work, that particular work is then subject to all the rights in the first sale doctrine. So now the question is, when does this exception, the first sale doctrine, actually apply? Specifically, the question is, what does it mean to say that a work is lawfully made under this title? This title refers to Title 17 of the United States Code, which is the copyright law of the United States. So what does that mean to say it's lawfully made under this title? There are several different answers and the courts have not been consistent in this. One possibility is that it means manufactured in the United States, actually made on US soil. Another possibility would be that it means manufactured abroad, but sold in the United States. There have been a number of different cases. There is a case called Quality King that involved mattresses in which the Supreme Court upheld the first sale, the doctrine of first sale, when the goods had been manufactured in the US, sold to a foreign distributor, and then re-imported the so-called round trip. In that case, the Supreme Court clearly said, hey, they were manufactured in the US. They were made right here. They're subject to Title 17 and therefore they're lawfully made under this title for the purpose of first sale. That was not a Supreme Court case, but a Ninth Circuit case called Drug Emporium, held that when foreign goods, goods manufactured outside of the United States are sold in the US with the authorization of the rights holder, they would still apply. Something can be manufactured outside the US but sold with the authorization of the rights holder in the US and still be subject to first sale. That's not the case in Caratsaw. Remember, Brandon just told you, the textbooks were manufactured outside of the United States and they were sold in the US without the authorization of the rights holder because Mr. Caratsaw believed they were subject to first sale and that he was allowed to do that. But that case gets us part way, and I think Brandon's, or I'm sorry, John is going to tell you more about that, but it doesn't get us to where we need to be. Instead, in Caratsaw, the Second Circuit, there's a Freudian slip, the Second Circuit focused entirely on the place of manufacture and said that if it was made outside the United States, there was no first sale. So this is what we're debating. When does the exception apply to what kinds of goods? Do they have to be manufactured in the United States? Can they make a round trip? Supreme Court has told us they could. What if the sales authorized in the US even though the goods were made elsewhere? What if the goods were made and sold elsewhere? Those are the different scenarios we're looking at. And in the Caratsaw case, the Second Circuit pretty clearly said they had to be made in the US to be subject to first sale. And part of the reason for that is this other clause in the Copyright Act, which is called the importation clause. It's a kind of a strange provision. It was put into our law before we had agreed to international treaties that extended copyright protection to works that were created by nationals of other countries in other countries. The importation clause is separate from first sale, but it is very much related. And basically it says that US copyright law applies only to works, well, no, I'm sorry, it used to say that US copyright law applies only to works that were manufactured in the United States. That was the first part of the importation clause and it was repealed when we joined the international treaties. But Section 602, the second part of the importation clause, still forbids importation without the authorization of the copyright holder of goods that are required outside the United States. That's the fundamental reason why the Second Circuit decided that first sale applied only to works manufactured in the United States. Because of this provision, they decided that works that were manufactured elsewhere were not lawfully made under this title and therefore not subject to the first sale exception. Now this provision that forbids importation of goods acquired outside the United States does have some exceptions. One of those exceptions is for single copies purchased by somebody who's traveling and brought back for their personal use. You go like I did, went to study in London and brought back boxes full of books. That's okay. I'm not violating the importation clause by bringing back those single copies. There's also an exception that says that library books are okay up to five copies that are purchased abroad for the purpose of lending or archiving. So libraries have this limited exception to the importation clause for books that they buy abroad. That may not be enough and I think John is going to tell you about the risks there but it's there. Let's note that for now. There's also an exception for audio visual material that's bought for library purposes. It refers to only a single copy and interestingly it says for archiving purposes. We may import a single copy of an audio visual work for archiving purposes but unlike the exception for books it doesn't actually mention lending. So you see when we look at this clause you can see where the second circuit was coming from but you can also see why what they've said has the potential to cause significant problems. So basically the second circuit looked at this clause and said this tells us that only things that are manufactured in the United States are subject to the doctrine of first sale. Obviously the stakes for libraries are pretty high here and we're going to talk more about those in a minute. We acquire lots of materials that are manufactured abroad including lots of films. That's what I'm quoting, who am I quoting here? Donald Rumsfeld called the known unknowns. We know that we have lots of things that we bought abroad and right now we don't know whether or not the doctrine of first sale applies to that. So those items are the known unknowns. But we also know that U.S. publishers actually have a lot of their books printed overseas. So they're technically manufactured abroad but we may have no way to know that. So that's the unknown unknown for us. And the question is can we lend these items? Obviously a decision in this case has tremendous stakes for libraries the potential to wreak havoc in our libraries and not just in libraries. Potentially this case could cause problems for anyone who resells or buys secondhand material that contains copyrightable components. Obviously the case arose from a student reselling textbooks. If what Mr. Kirtzag did was illegal then what our students do routinely selling their secondhand textbooks may also be illegal. I also find myself wondering if I will be able to resell my Toyota which has copyrighted software in it. So the way this case comes out could affect a huge swath of so-called gray markets or secondhand markets. So it's a very, very important case to watch. And with that I'll turn over to John. Thank you very much Kevin. So just to quickly recap as Kevin and Brandon mentioned the Court of Appeals found that this phrase lawfully made under this title means manufactured in the United States. And so it said that the first sale doctrine did not apply to these copies that were lawfully printed abroad. The second circuit last year it was appealed to the Supreme Court. The Supreme Court agreed to hear the appeal and others granted. The oral argument is scheduled for later this month, October 29th and that's why we're holding this webcast now in anticipation of the oral argument. And then we expect a decision sometime before June 2013. That's when the current Supreme Court term ends. So we expect that the decision will be issued sometime before then. I mean it could come out in December or January, no later no later than June. So there's a lot of briefing admitted in this case. And so the main the lawfulness of selling this text as well. And we were talking about what our preferred outcome is that in other words that the term the phrase lawfully made under this title would apply to lawfully made anywhere. In other words lawfully made in compliance with the copyright law. So in other words non-paradical copies. So that would be the broadest interpretation of this phrase lawfully made under this title. That would be of, you know, greatest benefit to libraries. You know, we anticipated that that might not work. And so we were sort of coming up with various faults. So one fallback to Kevin mentioned, a theory that the Ninth Circuit first articulated lawfully made overseas but imported with the authorization of the rights holder. So that would take care of libraries with copies that they buy here in the United States. So that would be obviously helpful. And now it still wouldn't take us all the way where we want to go because we still need to have a variety of other theories. And I'll go over some of those in a minute. But a lot of lawfully made under this title. But in the alternative, you know, what are these other theories that they're as broad as and strong as they can be? And in particular, how do we, you know, how do we get adagy behind our amicably? And again, in our brief, a lot of it was, you know, besides legal argument, a lot of it was, you know, talking about the 400-year history of library lending in the United States and this parade of horribles that if we can't lend library, you know, if the first sale doctrine is limited, then there's this, then there are these possible ramifications. And so therefore, you need to give us some help either, either again, agree with Kurt Seng's argument or come up with some other theory that helps take care of libraries. And the appellee here, the respondent, the publisher, as well as the US government in various, various arguments they've made have, have, have in essence agreed that, so in particular, you know, why we said a library wouldn't have to worry about thought in the United States, even if it's foreign made, why they wouldn't have to worry about copies made in the United States first, they, they said, well, you know, there is this Ninth Circuit applied to, that's the first sale doctrine applies to selling it to a library, there's that the library can, can lend it. In other words, why would someone sell something to a library if they didn't expect the library to lend it? The Solicitor General of the United States in its brief that again affirmed the very little bit more in a minute, in agreed that all these different be interpreted in a broad manner helpful to libraries, but they also had a very interesting theory as to why the, the applies to copies made in the United, made overseas but sold with authorization in the United States. It said that it's not a matter of how you interpret sexual 109A, which is the first sale doctrine as Cota talking about before, and you don't need to worry about this, you never had, even if Congress never enacted section 109A, there is an exhaustion doctrine, there is a first sale sold with the authorization of the right, expires, the distribution right expires, exhaust, with respect to that copy on the copyright, on the distribution right. So that's, that's a pretty far-reaching theory that the Solicitor General articulated as a sort of common law of the doctrine, and you know, I just to leap ahead a bit to the prediction phase, I have a feeling that that's something we'll be hearing more about. So in any event, where does all, you do end up with something, if it's made in the United States, you obviously, you know, the first sale doctrine applies, so then that's the top line, so then you get to the next category manufactured outside the United States, and then the top, there, you know, and it splits, and then the top line, again, is authorized, you know, it's the authorized U.S. sale of the copy, and if the authorized, if it's sale with, with authorization, then one theory would be again this Ninth Circuit theory, or another one would be, and then, but what happens if it's not sold with authorization in the United States? In other words, you still buy it overseas, and this again is an area where we had some concerns, so Kevin mentioned you have these five, there is this exception for a library to import five copies for the purpose of lending, of archiving and library lending, but the problem with that, if it buys five copies of a book, then it can do whatever it wants with them. Well, not so fast, but even if it is buying, you still have a problem, because the way that for the purpose of library lending, but it doesn't actually say you can lend it. Now, you can say, well, that of course is implied, but it still doesn't say that you can lend it, and so that was one of the things where it would be ridiculous if it did not, if it was not implicit, was the library not only to import, as ever, any future litigation, bother going there, because they know that we'll be able to buy us not only to import, and then finally, you know, we do have this even, even assuming that the copy and lend five copies of books, we still have the other prong that Kevin mentioned, only allowed to import the one copy, but it's only for preservation purposes, so if you were importing a DVD of a foreign film, but then you wanted to lend it, you know, even allows you to lend it, so at that point you'd need to rely on fair use, on implied license, but certainly that is again an argument that, not again, not only implied license, but also fair use, and that's an essence saying that in its opinion, if a library engages in lending, that is a fair use, and so that having simply, you know, even that one sentence in this footnote, in the Solicitor General, again very helpful in the brief, you know, the Solicitor General, and then again hopefully from the court, that the very, if for some rebound, not to apply to these copies made, and with that I will turn things over to Carrie. About why libraries care about this issue, and of course it goes back to your professional values as a librarian copyright law, and we know the copyright law is its purposes to advance learning through the distribution, creative works, information, not very important, in getting items out, distributing them. Easy it is to borrow a book from a friend, or how easy it is to get a book from the library, check it out, maybe you want to buy it. The other reason why we care is that only libraries offer no FIACs, and there still are many people, if we don't offer this type of, we are democracy, we believe that people should be informed citizens so they can participate, and really we buy in the marketplace, that you might be promote literacy, creativity, you remain anonymous, or that they can track, limit our ability to acquire and lend many many many things. When we know that just here in the United States are manufactured overseas, you can see that this would really put a damper on what we could acquire and lend. The worst case scenario is that libraries would have to ensure that books they lend are manufactured in the United States, and that would be difficult to do because these books that we have today aren't necessarily including where they are printed. So how would you know if you had a title that was produced in a foreign state? Another thing that I've always kind of been afraid of is that court will get into the kinds of lending that other countries do, where exhaustion applies, but they have to pay a lending fee in order to lend books. And I can see that publishers would be quite happy to see libraries paying a license fee to lend books. Now it would usually be like some part of your acquisition, and then the other thing is that it could spark interest in digital first sale. That could lead to some undesirable information policy, where again the rights holders might win big and we would find ourselves strapped for getting content, pushing the content more into the marketplace rather than at the free. Saying anything about what I think the likelihood of it is, I think Jonathan has already told us what the best case scenario would be, and that would be for the court to define lawfully made under this title as applying to anything that was lawfully made with the authority of the rights holder, regardless of where it was made or where it was sold, as long as it's not pirated, as long as it's not a DVD that's been pressed and somebody's are burned in somebody's basement to be sold on a blanket. It should be subject to first sale because it would have been lawfully made under this title, lawfully simply meaning made with the authority of the rights holder. And I think there's an argument for that. I hinted at that a little bit, but I want to say it explicitly. The importation clause that's being used here to define lawfully made under this title was part of our copyright law before we recognized most copyrights in foreign works, long before we joined the Byrne Convention in 1988, which is when we did begin to recognize all kinds of international copyright. So the importation clause is really a hangover from a time when copyright law was used as a kind of protectionist tool. And I think we need to recognize, I think the court needs to recognize that now we are in a situation where we extend the rights under copyright very, very broadly. Any signatory nation of the Byrne Convention gets national treatment in the United States. In other words, they're subject to exactly the same rights that American authors are. And I would like to see the court recognize that in this changed situation, it is not only the case that we should extend the copyrights, the rights under copyright to limit the exclusive rights to international works, but also make those works subject to the same exceptions. If the court follows the Second Circuit, then basically works that are manufactured abroad would be in a better stance than works that are made in the United States. And that would be a very bizarre outcome. So I would hope the court would look to our international agreements and say those international agreements really push us towards ruling that lawfully made under this title applies to any work that can claim U.S. copyright protection, that is any work that was manufactured with the authority of the rights holder. So that's the best case scenario and that's one of the ways I think the court could get to it. It's funny that is that that would be a really deep irony because as you described right the U.S. Copyright Act, initially U.S. and it sounds like Lang would reverse that entirely. That is it's ill and lending and all that good stuff. So it would be a really perverse outcome. And that's a really good point to note that the Second Circuit in rendering their decision actually noted that that was happening. They knew there was a bad outcome here and they still felt bound to do this and hopefully the Supreme Court can reverse that. That's right. Okay and then Jonathan I wonder if you since you've been reading all of these briefs. I thought that there was a the likelihood of a ferment of the Second Circuit was very high that they would simply sort of come out with a very simple ferment saying lawfully made under this title means lawfully made under the in the United States. And yes it has all those perverse outcomes that Kevin was alluding to but that's Congress's problem and you know this has been the rule for you know empty umbeers and we haven't seen you know a lot of companies moving overseas just for all kinds of reasons and so you know and we haven't seen publishers really clamping down on the secondary market. So you know the concerns that people are raising are sort of exempt. A month ago that's where I thought the Wiley brief where they in essence agreed to this Ninth Circuit to copies made over favor of that position in our brief and they you know they the justification prize that they did that but then all the more so in the lawfully made overseas but sold with authorization in the United States you know that a different 109a but but relying on the common doctrine but the fact I think that that it's very likely that the Supreme Court either in its hold doesn't involve copies that are lawfully sold with the authorization of the right. I think it's highly likely that that the decision if not in the holding that they will indicate that that that what Jonathan thinks is the decision comes out where related communities that we work with and for what are the next have librarians really if the ruling goes bad I would anticipate that grassroots continue to have your garage sales you can can think that was my breath and I actually wanted to ask Jonathan a question if you don't mind Jonathan you outlined a set of exceptions and the solicitor general has outlined that set of exceptions apparently that would pretty much cover the ground for library lending but I want to get to what Kerry just said none of those exceptions it seems to me would authorize our students for those of us who are in universities to resell their textbooks would they and it seems to me that this would still basically allow publishers to close down the secondary textbook market which I think has always been desirable from their point of view and would it wouldn't it still give me a problem with reselling my Toyota would not it be possible for Toyota to say to me when you resell that Toyota you have to give us 10% of the sale or whatever it is or we won't let you do that well I think again a lot depends on what the court authorization in the United States then that probably would take care of the group that's new in the United States and and and you know if you know let's say let's say early possible where where they simply say no it's got to be lawfully captured in the United States or in copies whatsoever in that situation I would say at least with you know but but actually in the Costco about at the outset when the case went back on remand to the district was misusing its copyright because it basically said look this is not a copy to the watch is not a copyrighted product logo on the watch is to make that argument with respect to misuse for them to control the watch was to the operation of the watch and it would probably be less of a problem for you doing I think there are theories out there but it would make it would be a lot harder you know your garage sailor are we really confident that the court yeah and I agree all of the briefs as Jonathan has said Jonathan's own brief was wonderful and the brief from Wiley and from the Solicitor General have put this issue pretty squarely in front of the court I think it would be kind of embarrassing to the court to try and duck it now all of you on that and then Kevin I wanted to ask you kind of a theory of why this whole problem exists which is that we but there are these we know law kind of gets a short shrift in the supreme court at least with some of the justices out there do you think that the justices would be sympathy in our international agreement I think there probably is I think that international IP protection has it certainly has in the last few administrations then other kinds of international law and even the administrations that have looked with a scant looked a scant at international law have been very encouraging of international agreements of ratcheting up IP protection patent and copyright protection internationally so I think this is an area where the court is more likely to look at the policies behind our agreement our acceptance of the burn agreement and the the TRIPS agreement which is part of the World Trade Organization's general agreement on tax and tariff and I guess that gets at the reason I think the court would look more favorably on these international agreements because they're trade agreements we're not looking at other countries and saying well they don't have a death penalty so therefore the United States should have not have a death penalty that argument has never had any weight with U.S. courts or very little weight with U.S. courts but I think looking at these and recognizing that they are trade agreements and this is a trade issue makes the more likely to give some account to the international agreement but that's just the theory this is Jonathan Bannon back and I'm sorry that I that I he got disconnected myself so I missed the opportunity to answer that earlier question but if I may this goes back to you know how likely is it that library issues would be addressed at all given that this case doesn't involve libraries and and again until if you I would have agreed with that again you know as you say the facts really didn't address libraries the facts of the case didn't address libraries and we were sort of just trying to inject ourselves in hopes of someone maybe one of libraries and saying something nice about libraries and you know and saying a nice about the theories that we were articulating this sort of middle of the road compromised position I think that that again significantly increases or at least you know again maybe in a footnote maybe maybe in a concurring opinion maybe in dicta but I you know the fact that the the respondent and then the solicitor general you know maybe just again reflects the notion that you know maybe you know people out there really really do love us and and and they realize that these arguments that we were raising about the potential adverse impact were to the court and so that they needed to find a way out for libraries you did include them in the library sale you'd you'd have some trouble also earlier Kevin mentioned museums I mean you I know I remember at the library we used to get a lot of images you know you know a lot of pictures photographs can we put them on the wall or not that would be the question the museum association to file the brief haven't they yes the museum association and and about as again that phrase lawfully made into this section 109c section 1101 that's the means the flawfully made into this title means lawfully made in the United States so that means that would not allow this room now again you would have to come 10-1 all of a sudden would not appear would not apply these foreign-made films basically like everything IRL does is joining us and I hope you'll stay tuned as we follow this exciting saga that I think is probably going to be with us for a few more months no matter