Term: 2012
Docket: 11-697
Supap Kirtsaeng, Dba Bluechristine99, Petitioner v. John Wiley & Sons, Inc.
- Pro
11-697 KIRTSAENG V. JOHN WILEY & SONS, INC. DECISION BELOW: 654 F.3d 210 CERT. GRANTED 4/16/2012 QUESTION PRESENTED: This case presents the issue that recently divided this Court, 4-4, in Costco Wholesale Corp. v. Omega, S.A., 131 S. Ct. 565 (2010). Under § 602(a)(1) of the Copyright Act, it is impermissible to import a work "without the authority of the owner" of the copyright. But the first-sale doctrine, codified at § 109(a), allows the owner of a copy "lawfully made under this title" to sell or otherwise dispose of the copy without the copyright owner's permission. The question presented is how these provisions apply to a copy that was made and legally acquired abroad and then imported into the United States. Can such a foreign-made product never be resold within the United States without the copyright owner's permission, as the Second Circuit held in this case? Can such a foreign-made product sometimes be resold within the United States without permission, but only after the owner approves an earlier sale in this country, as the Ninth Circuit held in Costco? Or can such a product always be resold without permission within the United States, so long as the copyright owner authorized the first sale abroad, as the Third Circuit has indicated? LOWER COURT CASE NUMBER: 09-4896
In the case of Kirtsaeng v. John Wiley & Sons, Inc., Supap Kirtsaeng was sued by textbook publisher John Wiley & Sons for copyright infringement. A Thai student studying in the United States, Kirtsaeng had discovered that textbooks were sold at a much lower price in his home country than they were in America. He asked friends and family to buy these cheaper versions abroad and send them to him, where he then resold them on eBay for profit but still less than their U.S retail prices. The publisher argued this violated its exclusive right to distribute under Section 106(3) of the Copyright Act because it did not authorize these imports or subsequent sales. The Supreme Court ruled 6-3 in favor of Kirtsaeng, holding that the "first sale" doctrine applies to copies of copyrighted works lawfully made abroad. This doctrine allows owners of copies lawfully obtained (through purchase or gift) to sell those items without permission from copyright holders; thus protecting secondary markets such as used bookstores and libraries.
In the dissenting opinion for Kirtsaeng v. John Wiley & Sons, Inc., Justice Ginsburg disagreed with the majority's interpretation of Section 109(a) of the Copyright Act, which allows owners of copies "lawfully made under this title" to sell or otherwise dispose of their possession without permission from copyright holders. She argued that this provision should not apply to foreign-made goods because they are not subject to U.S. copyright laws and thus cannot be considered "lawfully made under this title." According to her view, allowing such an application would undermine U.S. copyright holders' ability to control distribution in different markets and could potentially harm domestic industries by encouraging offshoring production activities.
