The Supreme Court Issues Another Ruling on the First Sale Doctrine

In a 6-3 decision issued on March 19, 2013, the Supreme Court of the United States reversed and remanded a decision by the Court of Appeals for the Second Circuit, holding that the first sale doctrine applies to copies of a copyrighted work lawfully made abroad. The case involves a lawsuit filed by John Wiley & Sons, Inc. (Wiley) against Supap Kirtsaeng (Kirtsaeng) regarding foreign textbooks for which Wiley is the copyright owner. While studying in the United States, Kirtsaeng asked his friends and family in Thailand to purchase copies of inexpensive foreign edition English language textbooks and mail them to him in the United States where he sold them for a profit. Wiley filed a federal lawsuit against Kirtsaeng for copyright infringement, claiming that the unlawful import and resale of these books constituted infringement. In response to the claims, Kirtsaeng argued that the books were lawfully made and that the first sale doctrine permitted him to resell or dispose of them without further permission from the copyright owner. The Supreme Court determined that Section 109(a) of the Copyright Act says nothing about geography and permits the first sale doctrine to apply to copies manufactured abroad with the copyright owners permission. The Supreme Court held that a nongeographical reading of Section 109(a) was in keeping with (a) the historical and contemporary statutory context, (b) the canon of statutory interpretation that when a statute covers an issue previously governed by the common law, it is presumed that Congress intended to retain the substance of the common law; and (c) basic constitutional copyright objectives. A lawful owner of a copy of a copyrighted work manufactured abroad can bring that copy into the United States and sell it without obtaining permission from the copyright owner. —Kristan B. Burch