Willamette Law Online

United States Supreme Court Certiorari Granted


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Kirtsaeng v. John Wiley & Sons, Inc.

Summarized by: 

Date Filed: April 16, 2012
Case #: 11-697
Court Below: 654 F.3d 210 (2d Cir. 2011)
Full Text Opinion: http://www.ca2.uscourts.gov/decisions/isysquery/830508de-5f72-4670-b92d-1b813e13dc5f/1/doc/09-4896_complete_opn.pdf

Copyright: Whether the Copyright Act's "first sale doctrine" freely permits resale of foreign works legally purchased overseas and imported into the United States as the Third Circuit has held, or if such works can only be resold after the copyright holder explicitly approves the sale as the Second Circuit has held, or if they can only be resold after the copyright holder approves an earlier sale as the Ninth Circuit has held.

Petitioner purchased foreign manufactured textbooks abroad, imported them to the U.S. and resold them at a profit without the copyright holder’s permission. The textbook publisher brought suit against Petitioner for copyright infringement of the exclusive right to distribute under 17 U.S.C. § 602(a)(1). The court determined that § 109(a) of the Copyright Act's first sale doctrine does not refer to foreign works manufactured abroad and cannot be used by appellant as a defense to the copyright infringement claim.

The Court of Appeals for the Second Circuit affirmed the lower court's holding that the first sale doctrine does not apply to copies manufactured outside of the U.S. The court's statutory interpretation turned on whether the phrase of § 109(a), "lawfully made under this Title" refers to any work made in the U.S. or "any work that is subjected to the protection under this title." In reliance on the Supreme Court's dicta in Quality King v. L'Anza Research International, Inc., the court determined that "lawfully made" under the laws of a foreign country is not necessarily the same as what was meant by § 109(a) and instead refers specifically to domestic works.

On appeal Petitioner argues that the Second Circuit misinterprets the language, structure and historical application of the first-sale doctrine. Petitioner argues that the Second Circuit's interpretation is inconsistent with both the Ninth and the Third Circuits' interpretations and that the United States Supreme Court needs to resolve the split.