Kirtsaeng v. John Wiley & Sons, Inc.

The 'first sale' doctrine is not constrained by a geographic limitation and applies to any copyrighted work which was lawfully produced in accordance to the Copyright Act.

John Wiley & Sons (“Wiley”) publishes textbooks both in the United States and abroad. Textbooks published abroad contain notices that the books are only to be sold in designated regions and are not to be exported. Supap Kirtsaeng (“Kirtsaeng”), a Thai citizen, resold books that he was sent from Thailand while studying in the US. Wiley claimed that Kirtsaeng’s actions violated Wiley’s exclusive right to distribute under §106(3) and prohibit import under §602 of the Copyright Act. Kirtsaeng claimed that his actions were permitted under the §109(a) first sale doctrine. The district court ruled that the first sale doctrine did not apply to foreign publications of US copyrighted material. The Second Circuit affirmed. Writing for a six justice majority, Justice Breyer reasoned that: the language limiting the first sale doctrine to only those articles “lawfully made under this title” did not create a geographic restriction based on the reach of the Copyright Act, but instead applied the first sale doctrine to works that were produced in compliance with the Copyright Act, no matter where the works were produced. Because the books purchased by Kirtsaeng were produced in compliance with the Copyright Act, the first sale doctrine applied to the works and he was free to resell them in the US. The decisions of the lower courts were therefore REVERSED.