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Supreme Court's <i>Kirtsaeng</i> Decision Fuels 'First Sale' Debate
The right to resell lawfully purchased copies of copyrighted works has a long history in American copyright law. It is beyond controversy that U.S. copyright holders may profit from the “first sale” of a particular copy of their work, but they may not control the downstream sale of that copy once it has been legitimately acquired. Courts recently, however, have struggled with whether this “first-sale doctrine” applies to goods manufactured abroad and later imported into the United States. Publishers frequently charge different prices in foreign markets, and they have argued that allowing unrestricted importation threatens that practice. In March, the Supreme Court squarely addressed this issue for the first time in John Wiley & Sons Inc. v. Kirtsaeng, No. 11-697 (Mar. 19, 2013), and held that the first-sale doctrine does in fact apply to copies made overseas and, as a result, these copies could be purchased in foreign markets and legally resold in the United States.
Background
John Wiley & Sons, Inc. (“Wiley”) is an academic textbook publisher. Wiley often publishes foreign editions of its English-language textbooks abroad, and because it prices them differently in these countries, Wiley seeks to prevent their importation into the United States. Supap Kirtsaeng moved from Thailand to the United States to study mathematics. Recognizing the large differential in price between the English-language textbooks sold in Thailand and those offered in the United States, Kirtsaeng asked his friends and family to buy books in Thailand and mail them to him in the United States, where he would sell the textbooks at a substantial profit. Wiley filed suit in New York claiming Kirtsaeng's importation and resale of these books infringed Wiley's exclusive distribution right.
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