U.S. Supreme Court Creates Challenges for International Producers of Copyrighted Works in Kirtsaeng First Sale Doctrine Decision

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In a March 19, 2013 decision in Kirtsaeng v John Wiley & Sons, Inc., the Supreme Court turned aside copyright owners’ attempts to draw geographic limits around the application of the “first sale” doctrine, holding that the doctrine applies to copies of copyrighted works lawfully made outside the United States and then imported into the U.S. The outcome provides comfort to libraries, museums and resellers of copyrighted works in the U.S. who source materials from around the world. But the decision creates significant challenges for international producers and distributors of copyrighted works who provide targeted products or pricing to specific markets and try to limit the movement of those works outside those markets.

The factual background to the Kirtsaeng decision is relatively straightforward. John Wiley & Sons, Inc. is an international publisher of academic textbooks. The Court essentially viewed there as being two versions of a Wiley textbook: one made in, and priced for, the U.S. and one made in, and priced for, non-U.S. markets. The non-U.S. books included a legend stating that the book was only authorized for sale in specific territories and could not be exported outside those territories. Supap Kirtsaeng is a Thai citizen who went to school in the U.S. While in the U.S., he asked friends and family in Thailand to buy copies of books there, at low prices, and send them to him in the U.S. They did, and Kirtsaeng resold the books in the U.S. for a profit.

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