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Kirtsaeng v. John Wiley & Sons, Inc. - 568 U.S. 519, 133 S. Ct. 1351 (2013)


Section 106 of the Copyright Act grants the owner of copyright under the Copyright Act 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.S. § 106(3). These rights are qualified, however, by the application of various limitations set forth in the next several sections of the Act, 17 U.S.C.S. §§ 107-122. Those sections, typically entitled “Limitations on exclusive rights,” include, for example, the principle of “fair use” (§ 107), permission for limited library archival reproduction, (17 U.S.C.S. § 108), and the “first sale” doctrine (17 U.S.C.S. § 109).


Respondent, John Wiley & Sons, Inc., an academic textbook publisher, often assigned to its wholly owned foreign subsidiary (Wiley Asia) rights to publish, print, and sell foreign editions of Wiley's English language textbooks abroad. Wiley Asia's books state that they are not to be taken (without permission) into the United States. When petitioner Kirtsaeng moved from Thailand to the United States to study mathematics, he asked friends and family to buy foreign edition English-language textbooks in Thai bookshops, where they sold at low prices, and to mail them to him in the United States. He then sold the books, reimbursed his family and friends, and kept the profit.

Wiley filed suit against Kirtsaeng, claiming that Kirtsaeng's unauthorized importation and resale of its books was an infringement of Wiley's exclusive right to distribute and import prohibition. Kirtsaeng replied that because his books were “lawfully made” and acquired legitimately, the “first sale” doctrine permitted importation and resale without Wiley's further permission. The District Court held that Kirtsaeng could not assert this defense because the doctrine does not apply to goods manufactured abroad. The jury then found that Kirtsaeng had willfully infringed Wiley's American copyrights and assessed damages. The Second Circuit affirmed, concluding that the “first sale” doctrine does not apply to copies of American copyrighted works manufactured abroad.


Does the “first sale” doctrine apply to copies of American copyrighted works manufactured abroad?




The language of § 109(a) read literally favored a nongeographical interpretation, that “lawfully made under this title” meant made “in accordance with” or “in compliance with” the Copyright Act. Section 109(a) said nothing about geography. 17 U.S.C.S. § 104 said that works “subject to protection under this title” included unpublished works “without regard to the nationality or domicile of the author,” and works “first published” in any nation that had signed a copyright treaty with the U.S. Copyright-related consequences, along with language, context, and interpretive canons argued strongly against a geographical interpretation of § 109(a). History reiterated the importance of the “first sale” doctrine. The “first sale” doctrine applied to copies of a copyrighted work lawfully made abroad.

Considering that the Second Circuit's finding that the first sale doctrine did not apply was reversed, and the case was remanded for further proceedings.

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