KIRTSAENG v. JOHN WILEY & SONS, INC.

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Case Basics
Docket No. 
11-697
Petitioner 
Supap Kirtsaeng
Respondent 
John Wiley & Sons, Inc.
Decided By 
Advocates
(for the petitioner)
(for the respondent)
(Deputy Solicitor General, Department of Justice, for the United States as amicus curiae supporting the respondent)
Term:
Facts of the Case 

Supap Kirtsaeng came to the United States from Thailand in 1997. He obtained an undergraduate degree at Cornell University before being accepted into a PhD program at the University of Southern California. To subsidize the cost of his education, Kirtsaeng asked friends and family in Thailand to buy copies of textbooks in Thailand and to ship those books to him in the United States. Kirstaeng then sold the textbooks on eBay at a profit. Among the books Kirtsaeng sold, were eight textbooks printed in Asia by John Wiley and Sons, Inc.

Wiley sued Kirtsaeng in district court for copyright infringement under Section 602(a)(1) of the Copyright Act, which makes it impermissible to import a work “without the authority of the owner.” Kirtsaeng asserted a defense under Section 109(a) of the Copyright Act, which 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 district court rejected Kirtsaeng’s argument, and held that the doctrine was inapplicable to goods manufactured in a foreign country.

Kirtsaeng appealed to the United States Court of Appeals for the Second Circuit. A divided panel acknowledged that it was a difficult question of statutory construction, but the majority held that Section 109(a) referred specifically to works that are made in the United States and did not apply to works manufactured abroad. Kirtsaeng’s request for rehearing was denied, and he appealed the appellate court’s decision.

Question 

If a copy was made legally, acquired abroad and then imported into the United States, can that foreign-made copy ever be resold within the United States without the copyright owner’s permission under Section 602(a)(1) and Section 109(a) of the copyright act?

Conclusion 
Decision: 6 votes for Kirtsaeng, 3 vote(s) against
Legal provision: Copyright Act

Yes. Justice Stephen G. Breyer delivered the opinion of the 6-3 majority. The Supreme Court held that there was no geographic restriction on the “first sale” doctrine, which states that the copyright owner maintains control of the first sale only. The language and common-law history of the Copyright Act support a non-geographic reading of the Act that allows for unrestricted resale of copyrighted goods regardless of the location of their manufacture. The Court also held that a geography-based reading of the “first sale” doctrine would drastically harm the used-book business as it would force book sellers to be subject to the whim of foreign copyright holders.

In her concurring opinion, Justice Elena Kagan wrote that the majority’s decision did not limit copyright protection for copyright owners any further than previous decisions had. She argued that a stricter reading of copyright protection goes against the demonstrated legislative intent of the Act. Justice Samuel A. Alito, Jr. joined in the concurrence.

Justice Ruth Bader Ginsburg wrote a dissenting opinion in which she argued that the majority’s opinion runs counter to the Copyright Act’s purpose of protecting copyright owners from the importation of low-cost versions of their products. The language and legislative history of the Copyright Act indicate that Congress did not intend the “first sale” doctrine to apply to copies manufactured abroad. She also argued that the majority’s opinion drastically shifts the government’s policy in regards to international copyright agreements. Justice Anthony M. Kennedy and Justice Antonin Scalia joined in the dissent.

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KIRTSAENG v. JOHN WILEY & SONS, INC.. The Oyez Project at IIT Chicago-Kent College of Law. 26 July 2014. <http://www.oyez.org/cases/2010-2019/2012/2012_11_697>.
KIRTSAENG v. JOHN WILEY & SONS, INC., The Oyez Project at IIT Chicago-Kent College of Law, http://www.oyez.org/cases/2010-2019/2012/2012_11_697 (last visited July 26, 2014).
"KIRTSAENG v. JOHN WILEY & SONS, INC.," The Oyez Project at IIT Chicago-Kent College of Law, accessed July 26, 2014, http://www.oyez.org/cases/2010-2019/2012/2012_11_697.