The Supreme Court ruled last week in Kirtsaeng v. Wiley, a case that centered on the 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). The express question before the Court was whether the first sale doctrine applies to works manufactured outside the United States. While the Second Circuit and the Ninth Circuit had each ruled, in some fashion, that the first sale doctrine was limited to works manufactured within the United States, the Supreme Court disagreed with them – and the Solicitor General, holding that the first sale doctrine applies regardless of where the works are manufactured.
The first sale doctrine, codified at 17 U.S.C. §109(a), provides that the owner of a particular copy of a work “lawfully made under this title” is entitled to sell or otherwise dispose of that particular copy of the work. Meanwhile, another Section of the Copyright Act, 17 U.S.C. §602(a), provides that the importation of a work into the United States without the permission of the copyright owner is an infringement of the copyright owner’s exclusive distribution right.
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