Case of the Month
The “first sale” doctrine applies to copyrighted material lawfully produced outside of the United States.
Why is this case significant?
A purchaser may resell within the United States lawfully made copyrighted material purchased in a foreign country.
John Wiley & Sons, Inc., a textbook publisher, assigned the rights to a foreign subsidiary to publish, print, and sell Wiley’s English textbooks. Books published by the subsidiary state that they may not be taken without permission into the United States. However, Supap Kirtsaeng, a citizen of Thailand studying in the United States, asked friends and family in Thailand to purchase the foreign editions and ship them to him so that he could resell the textbooks at a profit. Wiley sued Kirtsaeng arguing that Kirtsaeng’s unauthorized importation and resale of the textbooks infringed on Wiley’s exclusive right to distribute its copyrighted material under 17 U.S.C. § 106 and violated the import prohibition described at 17 U.S.C. § 602. Kirtsaeng responded that the “first sale” doctrine described at 17 U.S.C. § 109 allowed him, as a legitimate purchaser, to dispose of the textbooks as he saw fit. The federal district court decided for Wiley, concluding that the “first sale” doctrine did not apply to goods made in foreign countries. The Second Circuit Court of Appeals agreed, and Kirtsaeng appealed.
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