WASHINGTON, D.C. – (Mealey’s) Citing its ruling last week in Kirtsaeng v. John Wiley & Sons Inc. (568 U.S. ___  (lexis.com subscribers may access Supreme Court briefs and the opinion for this case)), the U.S. Supreme Court on March 25 granted certiorari in another dispute over copyrighted textbooks, this time for the limited purpose of vacating and remanding the case to the Second Circuit U.S. Court of Appeals (Vinod Kumar et al. v. Pearson Education Inc. et al., No. 11-1343, U.S. Sup.) (lexis.com Supreme Court briefs).
Justice Stephen G. Breyer took no consideration in the grant of certiorari, according to the order.
At issue in the dispute between petitioners Vinod Kumar and Dart Air Inc. (Kumar, collectively) and respondents Pearson Education Inc., John Wiley & Sons Inc., Cengage Learning Inc. and the McGraw Hill Cos. Inc. is Kumar’s resale in the United States of textbooks lawfully manufactured by the respondents in India.
In September 2011, the Second Circuit affirmed via summary order findings by U.S. Judge Charles S. Haight Jr. of the Southern District of New York that the defendants’ actions constitute copyright infringement. The Second Circuit rejected the defendants’ attempts to invoke the first sale doctrine, codified at 17 U.S. Code Section 109(a), relying instead on its August 2011 holding in John Wiley & Sons Inc. v. Kirtsaeng (654 F.3d 210 [2nd Cir. 2011]). “Defendants argue that John Wiley & Sons is wrongly decided,” the Second Circuit wrote, adding that it “is bound by the holding of that case unless it is reversed by the Supreme Court.”
No Geographical Limitation
On March 19, 2013, the Supreme Court did just that, finding that there is no “geographical limitation” in Section 109(a). Accordingly, pursuant to its holding in Kirtsaeng, the Second Circuit’s holding must be vacated and remanded to the Second Circuit for further consideration, the Supreme Court held.
The case was twice distributed for conference, on Sept. 24, 2012, and March 22, 2013.
The petitioners are represented by Vivek S. Suri of New York. Theodore B. Olson of Gibson, Dunn & Crutcher in Washington represents Pearson.