Can United States copyright owners block importation of copies of their works sold
or distributed outside of the United States?
Confronting this apparently straightforward
question, the U.S. Supreme Court heard oral argument on 29 October 2012,
that revealed complex interactions of the relevant
statutes and the difficult consequences flowing from alternative
interpretations of those statutes.
Kirtsaeng v. John Wiley & Sons, U.S. No. 11-697. See
oral argument transcript.
The case involves Wiley text books printed and sold in Thailand, and
Kirtsaeng’s unauthorized importation and resale of those text books in
the United States. Wiley sued, claiming that the importation was an
infringement under 17 U.S.C. 602(a), and Kirtsaeng
defended that he had a right to resell the publications purchased in
Thailand under the first sale doctrine codified at 17 U.S.C. 109(a).
On review is the Second Circuit’s decision for Wiley that the text
books printed in Thailand could not satisfy the limitation in Section
109(a) that the first sale right applies only to copies “lawfully made
under this title,” which the Court interpreted
as copies physically made in this country.