Copyright Alert: Second Circuit Negates First Sale Right for Foreign-Made Works of Authorship

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In a startling and potentially far-reaching decision, a divided panel of the Second Circuit held this week that the first sale doctrine of 17 U.S.C. § 109(a) does not apply to copies of works manufactured outside of the United States. John Wiley & Sons, Inc. v. Kirtsaeng, 2011 WL 3560003 (2nd Cir. Aug. 15, 2011) (“Wiley”). If followed, Wiley would alter established law on resale of books, electronic products and any other works that are commonly made abroad – or that could be if manufacturers decide they want to control or to entirely prohibit the re-sale of their copyrighted works. Wiley’s broad holding is in conflict with a Ninth Circuit decision on the issue – one that the Supreme Court reviewed only last year, but affirmed based on a four-four split – so it seems almost inevitable that the issue will again be presented to the high court.

Publisher and copyright holder Wiley had designated certain editions of its texts as for sale only outside of the United States; the books at issue were printed abroad by Wiley Asia. Friends and family members of defendant Kirtsaeng purchased copies of the foreign editions in Thailand and shipped them to him in the United States, where he sold them on eBay. Wiley brought an action claiming that Kirtsaeng violated § 602(a)(1), which provides: “Importation into the United States, without the authority of the owner of copyright ..., of copies … of a work that have been acquired outside the United States is an infringement of the exclusive right to distribute copies [of the work].”

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