The Supreme Court granted certiorari in Kirtsaeng v. John Wiley & Sons, Inc., where the Court will decide whether the First Sale Doctrine applies to legally acquired foreign works that are resold in the United States.
The First Sale Doctrine is a defense to copyright infringement wherein the Copyright Act allows a valid purchaser of copyrighted work to freely resell the work once it has been purchased. The Circuits are split on whether the First Sale Doctrine should apply to works created by US authors for sale outside of the US that are purchased abroad and imported for resale here (the idea being that goods made for the foreign market tend to sell cheaper abroad and can be turned here for a profit).
Back in December 2010, I reported on a similar case before the Supreme Court coming out of the 9th Circuit which failed to resolve the matter conclusively:
The Supreme Court has upheld the Ninth Circuit decision in Costco v. Omega, holding that Section 109 of the Copyright Act (a.k.a. “The First Sale Doctrine”) does not apply to foreign-made goods. The Supreme Court decision, failing to reach a majority and tying at 4-4, does not provide a nationwide precedent but merely defaults to the Ninth Circuit’s ruling.
In Kirtsaeng, textbook publisher John Wiley & Sons is suing defendant for copyright infringement out of his purchase, import and resale of English foreign-edition textbooks to American students. The District Court found that the First Sale Doctrine did not apply, interpreting Section 109(a) of the Copyright Act to only apply to works made in a territory where the Copyright Act is law — namely the United States. The 2nd Circuit affirmed, ruling that the First Sale provision of the Copyright Act “is obviously intended to allow copyright holders some flexibility to divide or treat differently the international and domestic markets for the particular copyright item.”
I noted back in 2010 that “Justice Elena Kagan did not participate in [the Omega decision] as she had to recuse herself due to the fact that she had previously written an amicus for the government in this case prior to joining the SCOTUS.” Justice Kegan will not have to recuse herself this time and, given that the Omega decision was split squarely 4:4, we are likely to see this resolved once and for all.
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