Supreme Court Won't Allow Hurricane Sandy to Interfere With Big Copyright Showdown

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Despite a hurricane that threatens much of the Northeast, the U.S. Supreme Court opened as usual Monday morning.

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Justice John Roberts, just named as a "Brave Thinker" by The Atlantic for his role in upholding the Affordable Care Act this year, is defying a storm that has caused the shutdown of most federal government agencies, transportation and many businesses from Washington up to Connecticut. The entertainment industry in the region will grind to a halt in reaction to 90 mph winds, but Hurricane Sandy doesn't have standing at the high court.

At the Supreme Court, the show is going on. "It was the decision of the chief justice in consultation with court officials," a court spokeswoman told Reuters.

On tap for Monday is a hearing in a case that has attracted interest in Hollywood. The high court will consider whether consumers have the right to resell copyrighted works such as movies, songs and books imported domestically.

The case is Kirtsaeng v. John Wiley & Sons, Inc..

Supap Kirtsaeng, the appellant, is an immigrant from Thailand who was sued by the book publisher after he began selling textbooks on eBay.

He defended himself by pointing to the "first-sale doctrine," the part of copyright law allowing those who have purchased copies of creative works to resell these goods without the authority of the original copyright owner.

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Kirtsaeng lost at a jury trial and was ordered to pay $600,000 for willful infringement. He lost at the 2nd Circuit Court of Appeals too, as the publisher pointed to sections of copyright law intended to curtail illegal importation of copyrighted works.

The MPAA and RIAA have lined up behind John Wiley in an amicus brief, writing that "unauthorized importation of copies of protected works made overseas and intended only for sale in a foreign market can undercut or eliminate the economic benefit that Congress intended to provide under the Copyright Act."

Kirtsaeng's attorneys also warn of implications should the Supreme Court uphold the lower courts' rulings. They say that copyright holders are becoming aggressive and that a decision to allow restricting the resale of foreign-made goods would imperil Netflix, open questions whether foreign-made copies can ever be imported and lead companies to send their manufacturing abroad.

"The natural response to a parade of horribles like this is to roll one’s eyes and blithely insist, 'It’ll never happen,' " says the appellants' legal brief. "But if a major international publisher is willing to doggedly pursue a graduate student who sold textbooks -- and crush him with a $600,000 judgment for a willful violation and an order to turn over his computer -- there is little assurance that others will exercise restraint where the rents to be extracted are far richer and the pockets far deeper."

Roberts is proving his mettle by not delaying consideration of the case as a storm rages. Other court systems in the Northeast have decided to lock up for the wind and rain.

E-mail: eriq.gardner@thr.com; Twitter: @eriqgardner