As we noted late last year in Kirtsaeng v. John Wiley & Sons: How the Supreme Court Will Decide the Fate of eBay, Libraries, and Yard Sales, the Supreme Court is presently considering Kirtseng v. Wiley, a case that is expected to resolve the decades old tension between copyright law’s first sale doctrine, codified at 17 U.S.C. §109(a), and the importation restriction found in 17 U.S.C. §602(a). However, this won’t be the first time that the Court has been confronted this issue – the intersection of these provisions has twice appeared before the Court in the past fifteen years alone.
As background, the first sale doctrine provides that the owner of a particular copy of a work “lawfully made under this title” is entitled to sell or otherwise dispose of the possession of that copy of the work. The first sale doctrine is the reason why people can loan books or DVDs to friends or sell those books and movies at a garage sale – it means that once a person lawfully acquires a copy of a work, the copyright owner is powerless to prevent the buyer from further distributing that work. Meanwhile, the importation restriction set forth in §602(a) states that the importation of a copyrighted work acquired outside the U.S. constitutes an infringement of the work (although there are exceptions to that rule for the importation of a single copy for strictly personal use, among other things).
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