U.S. Supreme Court applies first sale doctrine to copies of copyrighted work lawfully made abroad and imported into the U.S.

On 19 March 2013, the U.S. Supreme Court issued a landmark decision in Kirtsaeng v. John Wiley, holding that the first sale doctrine in U.S. copyright law extended to copies of a copyrighted work lawfully made abroad.

In this case, Kirtsaeng, a University of California Student from Thailand, started selling on eBay in the U.S., the low-cost foreign edition of English-language textbooks published by John Wiley and Sons in Thailand that had been shipped to him by his family and friends, thereby making a substantial margin.

Publisher John Wiley & Sons brought an action against Kirtsaeng based on U.S.C. § 602(a)(1), which provides that the importation into the U.S. of a work acquired outside the U.S. without the copyright owner’s authorization constitutes an infringement of the copyright owner’s exclusive rights.

Kirtsaeng defended his action on the basis of the first sale doctrine under 17 U.S.C. § 109(a), according to which the owner of a legally acquired copy of a copyrighted work “lawfully made under this title” may sell or distribute such copy without the copyright holder’s permission.

Both the District Court and Appellate Court rejected this argument on the ground that this doctrine would not apply to copy of a work manufactured abroad, notably as a result of the copyright owner’s exclusive right to control the importation of his work.

The Supreme Court, in a 6-3 decision, reversed the lower courts’ decisions, holding that the first sale doctrine did apply to copy of a work lawfully made abroad. To reach this conclusion, the Court held that the words “lawfully made under this title” in section 109(a) were not “geographically restricted”. The Court therefore concluded that a first authorized sale of a work, even outside the U.S., would limit the copyright owner’s exclusive rights to control the further distribution and importation of his work. [Béatrice Martinet Farano]