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Intellectual Property

Is First Sale Rule Limited to Domestically-Made Copies?

In the upcoming Kirtsaeng case, the Supreme Court is expected to provide the long-awaited answer to the question whether copyright law's first sale rule applies only to domestically-manufactured copies. Mary LaFrance gives us a preview of the upcoming case and its implications.



     The petitioner in Kirtsaeng imported and sold copyrighted books that had been manufactured outside the United States under a license from the publisher, John Wiley & Sons. The publisher prevailed in a suit for copyright infringement, because both the district court and the Second Circuit rejected the petitioner's first sale defense, finding it inapplicable to copies manufactured outside of the United States. Kirtsaeng v. John Wiley & Sons, Inc., 654 F.3d 210 (2d Cir. 2011) [enhanced version available to subscribers], cert. granted, 132 S.Ct. 1905, 2012 U.S. Lexis 2905 (Apr. 16, 2012).

     The Second Circuit went on to apply its Kirtsaeng decision in Pearson Education, Inc. v. Kumar, 721 F. Supp.2d 166 (S.D.N.Y. 2010) [enhanced version available to subscribers], aff'd sub nom. Pearson Education, Inc. v. Yadav452 Fed. Appx. 11 (2d Cir. 2011) [enhanced version available to subscribers], pet. for cert. filed, No. 11-1343 (May 3, 2012). The district court held that the first sale rule did not apply to copies made outside the United States, then imported and sold to U.S. purchasers through the Internet, and the Second Circuit affirmed on the strength of Kirtsaeng. The Supreme Court's decision in Kirtsaeng will probably resolve the issues in in Pearson Education as well.

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