Copyright and First Sale Doctrine

The US Supreme Court issued its decision in Kirtsaeng v. John Wiley & Sons that the first sale doctrine applies to copyrighted works, such as textbooks, made and sold abroad and re-sold online and in discount stores. In a 6-3 opinion, Justice Stephen Breyer reversed a judgment entered in the Southern District of New York in favor of the publisher against the plaintiff graduate student which the Second Circuit Court of Appeals affirmed in John Wiley & Sons, Inc. v. Kirtsaeng, 654 F. 3d 210 (2011). The student had subsidized the cost of his education by using eBay to resell copies of the publisher’s copyrighted books that his relatives first bought abroad at cut-rate prices. Citing the brief of the American Library Association, Justice Breyer wrote that to rule otherwise would create financial chaos, citing public libraries as an example and asking are “libraries to obtain permission to distribute these millions of books? How can they find, say, the copyright owner of a foreign book, perhaps written decades ago? . . . . Are the libraries to stop circulating or distributing or displaying the millions of books in their collections that were printed abroad?”

The decision discusses 17 U. S. C. §106(3) and the limitations set out in §§107 through 122, including §109(a)’s “first sale” doctrine which dates back over a century. See Bobbs-Merrill Co. v. Straus, 210 U. S. 339 (1908) which dealt with the sale of a copyrighted novel. The doctrine, which limits copyright holders to profits only from the original sale thereby allowing a person to sell the copyrighted work in the United States without punishment and without having to compensate the original copyright holder, ensures a distribution chain of retail items, library lending, gift giving and rentals for a range of intellectual property. The ruling is the first time the Court ruled on whether that first sale doctrine applies to material both manufactured and first purchased outside the United States. Breyer said it does: “The upshot is that copyright-related consequences, along with language, context, and interpretative canons, argue strongly against a geographical interpretation.”

The Brooklyn Law School Library has a number of items in its collection on copyright and the first sale doctrine. See the third edition of Examples & Explanations: Copyright (Call # KF2995 .M35 2012) by Stephen M. McJohn which is on reserve at the circulation desk. Chapter 12 deals with the First Sale (including the Distribution Right and Importation). The remaining content is: An overview of copyright — Works of authorship — Originality — Fixation — Ideas are not subject to copyright — More excluded subject matter : functional aspects, infringing material, government works — Initial ownership of copyright — Formalities : copyright notice, registration, and deposit — Duration of copyright – Copyright transactions — The Section 106 exclusive rights — First sale — Some other limits on the exclusive rights — Fair use — Moral rights in works of visual art — Protections for technological measures and copyright management information — Jurisdiction, standing, and the elements of an infringement action — Contributory infringement and vicarious liability — Remedies — State law theories and federal preemption.