Justice Stephen Breyer asked Olson whether, without seeking permission, people could resell their foreign cars, libraries could sell or lend books bought from foreign publishers or museums could display paintings by Pablo Picasso. “Those are some of the horribles that they sketch. And if I am looking for the bear in the mouse hole, I look at those horribles, and there I see that bear. So I’m asking you to spend some time telling me why I’m wrong.”
Olson did not allay Breyer’s concerns with his answer. “I would say that when we talk about all the horribles that might apply in cases other than this, museums, used Toyotas, books and luggage, and that sort of thing, we’re not talking about this case.”
When Rosenkranz returned to the podium to conclude the argument, he said, “To Justice Breyer’s question, the bear is there. It is very much there.”
The current case has attracted so much attention because it could affect many goods sold online and in discount stores. The resale of merchandise that originates overseas often is called the gray market, and it has an annual value in the tens of billions of dollars.
Consumers benefit from this market because manufacturers commonly price items more cheaply abroad than in the United States.
The federal appeals court in New York sided with Wiley in this case.
EBay and Google say in court papers that the appellate ruling “threatens the increasingly important e-commerce sector of the economy.” Art museums fear that the ruling, if allowed to stand, would jeopardize their ability to exhibit art created outside the United States.
Conversely, the producers of copyrighted movies, music and other goods say that their businesses will be undercut by unauthorized sales if the court blesses Kirtsaeng’s actions.
A decision is expected by June.
The case is Kirtsaeng v. John Wiley & Sons, 11-697.