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Kirtsaeng v. John Wiley & Sons, Inc.

Supreme Court of the United States

October 29, 2012, Argued; March 19, 2013, Decided

No. 11-697

Opinion

 [*523]  Justice Breyer delivered the opinion of the Court.

Section 106 of the Copyright Act grants “the owner of copyright under this title” certain “exclusive rights,” including the right “to distribute copies . . . of the copyrighted work to the public by sale or other transfer of ownership.” 17 U.S.C. §106(3). These rights are qualified, however, by the application of various limitations set forth in the next several sections of the Act, §§107 through 122. Those sections, typically entitled “Limitations on exclusive rights,” include, for example, the principle of “fair use” (§107), permission for limited library archival reproduction (§108), and the doctrine at issue here, the “first sale” doctrine (§109).

 [***399] Section 109(a) sets forth the “first sale” doctrine as follows:

“Notwithstanding  [****9] the provisions of section 106(3) [the section that grants the owner exclusive distribution rights], the [**1355]  owner of a particular copy or phonorecord lawfully made under this title . . . is entitled, without the authority of the copyright owner, to sell or otherwise dispose of the possession of that copy or phonorecord.” (Emphasis added.)

 [*524]  Thus, even though §106(3) forbids distribution of a copy of, say, the copyrighted novel Herzog without the copyright owner's permission, §109(a) adds that, once a copy of Herzog has been lawfully sold (or its ownership otherwise lawfully transferred), the buyer of that copy and subsequent owners are free to dispose of it as they wish. In copyright jargon, the “first sale” has “exhausted” the copyright owner's §106(3) exclusive distribution right.

What, however, if the copy of Herzog was printed abroad and then initially sold with the copyright owner's permission? Does the “first sale” doctrine still apply? Is the buyer, like the buyer of a domestically manufactured copy, free to bring the copy into the United States and dispose of it as he or she wishes?

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568 U.S. 519 *; 133 S. Ct. 1351 **; 185 L. Ed. 2d 392 ***; 2013 U.S. LEXIS 2371 ****; 106 U.S.P.Q.2D (BNA) 1001; 81 U.S.L.W. 4167; Copy. L. Rep. (CCH) P30,396; 75 A.L.R. Fed. 2d 767; 35 Int'l Trade Rep. (BNA) 1049; 41 Media L. Rep. 1441; 24 Fla. L. Weekly Fed. S 87; 2013 WL 1104736

SUPAP KIRTSAENG, dba BLUECHRISTINE99, Petitioner v. JOHN WILEY & SONS, INC.

Subsequent History: As Amended April 4, 2013.

Prior History:  [****1] ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

John Wiley & Sons, Inc. v. Kirtsaeng, 654 F.3d 210, 2011 U.S. App. LEXIS 16830 (2d Cir. N.Y., 2011)

Disposition: 654 F.3d 210, reversed and remanded.

CORE TERMS

copies, importation, lawfully, manufactured, copyright owner, abroad, first sale doctrine, Revision, geographical, Print, phonorecords, exhaustion, permission, Copyright Act, words, Copyright Law, authorization, publisher, foreign-made, display, unauthorized, distribute, exclusive right, infringement, museums, first sale, copyright infringement, distribution rights, markets, holder

Copyright Law, Civil Infringement Actions, Defenses, First Sale Doctrine, Fair Use, General Overview, Ownership Rights, Distribution, Limitations, Business & Corporate Compliance, Infringement, Governments, Legislation, Interpretation, Scope of Copyright Protection, Publication, Acts Constituting Publication, Assignments & Transfers, Licenses, Displays, Performances, Courts, Judicial Precedent, Constitutional Law, Congressional Duties & Powers, Copyright & Patent Clause, Constitutional Copyright Protections, Copyright Clause