Kirtsaeng Dissent Reminds Us Of The Risks Of Foreign Entanglements In Copyright Policy

When somebody writes something that you heartily agree with, it’s a good idea to seek out an opposing view.

Supreme Court rulings make that easy: Any dissenting opinions appear below the majority ruling in the same PDF, so you have no excuse not to hit the Page Down key a few mores times to read them.

That brings me to Tuesday’s 6-3 ruling in Kirtsaeng v. John Wiley & Sons, Inc., in which the Court held that it was still legal to resell legally-obtained copyrighted material even if it was purchased abroad.

Justice Stephen Breyer’s majority opinion gets this case right, relying on the Constitution’s mandate to “promote the Progress of Sciences and useful Arts” before the welfare of individual intellectual-property holders to parse conflicting, long-unsettled provisions of U.S. copyright law.

(If every IP debate began with those magic words “promote the progress,” we’d have saner copyright, patent and trademark policies.)

But the minority opinion, written by Justice Ruth Bader Ginbsburg and joined in whole by Justice Anthony Kennedy and in part by Justice Antonin Scalia, is worth a read as well for its contrary focus.

In Part IV of that dissent, Ginsburg decries the international consequences of a ruling that, as she writes, “could benefit U. S. consumers but would likely disadvantage foreign holders of U. S. copyrights.” Two key sentences:

The Court today […] risks undermining the United States’ credibility on the world stage. 

This dissonance scarcely enhances the United States’ “role as a trusted partner in multilateral endeavors.” 

Why would a member of the Court express such concern for the workloads of the State Department and the United States Trade Representative? Because we’ve let trade negotiations drive domestic intellectual-property policy.

This has been going on for a while, but it was not always as obvious. The Digital Millennium Copyright Act’s anti-circumvention provisions implement two 1996 treaties ratified by the U.S.–but they did not have to be so obnoxious, since Canada is bound by the same two treaties but passed more liberal legislation.

The Anti-Counterfeiting Trade Agreement, however, left less latitude for policy-makers–and was negotiated under an offensive degree of secrecy. (Note that even when these multilateral talks happen more openly, they often take place in overseas locales where traditional news organizations don’t have the resources to send reporters.)

The resounding defeat of ACTA in Europe, making it increasingly unlikely that this agreement will go into force, doesn’t seem to have discouraged other efforts at writing intellectual-property policy through international trade talks.

Sean Flynn, associate director of the Program on Information Justice and Intellectual Property at American University’s Washington College of Law, wrote yesterday that a leaked draft of the Trans-Pacific Partnership would require the U.S. to enact the sort of importation restrictions that the Court just ruled violate the first sale doctrine.

And, he added, so does the text of other, already in-force trade agreements. Oops!

That’s the problem with this kind of policy laundering. Justice Ginsburg was right, if you only invert her logic to the proper order: When the Executive Branch’s trade negotiators try to interpret unsettled laws as they see fit in multilateral talks, they undermine the United States’ credibility on the world stage.