On Tuesday, the Supreme Court issued its opinion in Kirtsaeng v. John Wiley & Sons, Inc., resolving a long-simmering debate by holding that copyright’s first-sale doctrine applies to copyrighted works lawfully made anywhere in the world. The upshot is that someone who buys an authorized, foreign-made copy (Kirtsaeng involved a foreign version of a textbook) is free to resell that copy in the U.S. without the copyright owner’s permission.
As we explained in a previous post, the crux of the issue is the interplay between the Copyright Act’s “importation” provision (section 602(a)(1)) and its “first-sale” provision (section 109(a)). Generally, a copyright owner has the exclusive right to distribute copies of the copyrighted work. The first-sale provision, however, creates an exception to that right: it provides that someone who owns a particular copy “lawfully made under this title” (i.e., lawfully made under the Copyright Act) has the right to sell that copy without permission from the copyright owner. Finally, the importation provision says that if you acquire a copy outside the U.S., importing that copy into the U.S. without the copyright owner’s permission infringes upon the owner’s exclusive right to distribute copies.