Three Thoughts About Kirtsaeng

Aaron Panner, May 28, 2013

In Kirtsaeng v. John Wiley & Sons, Inc., the Supreme Court decided by a 6-3 margin that the “first sale” doctrine, codified at 17 U.S.C. 109(a), applies to legitimate copies that are made and sold overseas for distribution overseas. Accordingly, despite the prohibition on unauthorized importation of copies acquired abroad, contained in section 602(a)(1) of the Copyright Act, a copyright holder generally has no right to prevent importation of foreign editions of copyrighted works. I am of the view (a view which I admit has been shaped by thinking about this issue on behalf of interested clients) that the case was wrongly decided. It is cold comfort that five of the nine Justices of the Supreme Court seem to agree.

With the decision on the books, the copyright policy problem, if there is a problem, is now firmly in the lap of Congress. Musings about the decision are therefore of primarily academic interest, but, as a professor of mine once commented, there are those who see that as a good thing.

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