Supreme Court gets it right in Wiley v Kirtsaeng

19 Mar 2013

It’s really great to read today’s Supreme Court decision in Kirtsaeng, in which a bad opinion could have had very profound and negative consequences way beyond the normal contours of copyright. I attended the oral arguments in October (during Hurricane Sandy!) and wrote it up for EFF. I’ve been eagerly awaiting the decision since then, and I’m not disappointed. Here’s one of my favorite paragraphs from the decision:

Finally, the fact that harm has proved limited so far may simply reflect the reluctance of copyright holders so far to assert geographically based resale rights. They may decide differently if the law is clarified in their favor. Regardless, a copyright law that can work in practice only if unenforced is not a sound copyright law. It is a law that would create uncertainty, would bring about selective enforcement, and, if widely unenforced, would breed disrespect for copyright law itself.

Good news. Somebody in the office here called it “the first good Supreme Court decision on copyright in two decades.” I’ll take it.