Protecting Your Products in Light of the U.S. Supreme Court's Holding That A Copyright Owner Only Controls the "First Sale" of a Copy No Matter Where That Sale Occurred

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A copyright affords the copyright owner with “exclusive rights”. One such right is “to distribute… copies of [a] copyrighted work”under 17 U.S.C. § 106(3). Under the first sale doctrine, “The owner of a particular copy or phonorecord lawfully made under this title… is entitled, without the authority of the copyright owner, to sell or otherwise dispose of the possession of that copy of phonorecord.” 17 U.S.C. § 109(a). Thus, if one purchases a lawfully made copy of a copyrighted item, it may subsequently be sold without restriction.

The issue is rather clear-cut when it applies to goods that are made and sold in the United States. However, when a copy of an item protected by a copyright is lawfully made or sold abroad with the permission of the copyright owner and then imported and sold in the United States, then does the doctrine of first sale apply? Yes. The U.S. Supreme Court has recently addressed this issue in Kirtsaeng v. John Wiley & Sons, 568 U.S. __ (2013).

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