In a 6-3 decision, the Supreme Court overturned a controversial Second Circuit opinion and held that the first sale doctrine applies to a copyrighted work lawfully made abroad. This case, Kirstaeng v. John Wiley & Sons, is one that has been closely followed by many copyright scholars and publishers alike due to the potential implications on existing resale markets and foreign trade.
The petitioner-defendant, Kirtsaeng, is a college student who purchased foreign-made textbooks, which are less expensive than their U.S. counterparts but often contain identical material, and shipped them to the United States to sell to friends and other college students. Respondent-plaintiff publisher John Wiley & Sons filed a copyright infringement suit against Kirtsaeng, alleging that his shipment and resale of textbooks published outside of the United States was in violation of their copyright interests. At issue is the scope of the first sale doctrine, which is contained in Section 109(a) of the Copyright Act, the “importation” provision, Section 602(a)(1), and the meaning of the phrase “lawfully made under this title.”
The district court and Second Circuit held that Kirtsaeng could not benefit from the first sale doctrine because it did not apply to goods manufactured outside of the United States, and found Kirtsaeng liable for willful infringement of Wiley’s copyrights.
Supreme Court Justice Breyer’s majority opinion focused on the interpretations advocated by each party, and the decision, ultimately, turns on a combination of linguistic and grammatical considerations, the canon of statutory interpretation, along with the “deeply embedded” reliance on a non-geographical interpretation of the statute. “[T]he practical problems described by the petitioner and his amici are too serious, extensive, and likely to come about to be dismissed as insignificant—particularly in light of the ever-growing importance of foreign trade to America.”
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