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Jessica Chesher

Managing Editor


Innovation eReview
Kirtsaeng v. John Wiley & Sons, Inc.

Supreme Court Case involving: copyright, importing/exporting, publishing industry

Background: Supap Kirtsaeng came from Thailand to the United States in 1997 to study at Cornell and later at the University of Southern California. While in the United States, Kirtsaeng had friends and family in Thailand buy copies of textbooks, where they were sold at a lower price, and then ship them to him in the United States. These imported textbooks were then sold on eBay for a profit. Eight of the textbooks sold where printed in Asia by the publishing company, John Wiley & Sons, Inc.

John Wiley & Sons, Inc. sued Kirtsaeng for copyright infringement. A portion of the Copyright Act (Section 602(a)(1)) states that it is illegal to import a work “without the authority of the owner.” Kirtsaeng argued that under a different section of the Copyright Act (Section 109(a)), known as first-sale doctrine, legally obtained copyrighted material may be sold without the copyright owner’s permission. The district court rejected Kirtsaeng’s arugment and the United State Court of Appeals for the Second Circuit held that first-sale doctrine only applied to works made in the United States.

Opinion Summary: In a six to three opinion, the majority reversed the early ruling in favor of Kirtsaeng. In the opinion Justice Breyer took a different view of the argument made by the lower courts, which he characterized as “geographical.” He focused on the question of whether the manufacturing of the copies, regardless of location outside the United States, complied with the requirements of U.S. law.

As the publisher (John Wiley & Sons) had authorized the making of the copies, they were “lawfully made under this title,” allowing first-sale doctrine to apply.

For further review.

Implications: Regardless of what country a book is purchased in, if it is lawfully obtained, it can be resold without permission from the publisher.

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