In a landmark ruling, the Supreme Court, by a 6-3 margin, today held that the doctrine of first sale, which allows for legally acquired copyrighted works to be resold by their owners, does apply to works made overseas. The much-anticipated ruling comes in the case of Kirtsaeng vs. Wiley, and reverses the Second Circuit, which had ruled that the term “lawfully made” limited first sale “specifically and exclusively” to works that are made in territories in which the U.S. Copyright Act is law, and “not to foreign-manufactured works."
In its ruling, the Court held that neither the word “under” nor any other word in “lawfully made under this title" is meant to impose “a geographical limitation” on the copyright law. “The fact that the Act does not instantly protect an American copyright holder from unauthorized piracy taking place abroad does not mean the Act is inapplicable to copies made abroad,” reads the decision. The ruling also specifically called out the submissions from “Library associations, used-book dealers, technology companies, consumer-goods retailers, and museums,” who pointed out “various ways in which a geographical interpretation would fail to further basic constitutional copyright objectives, in particular “promot[ing] the Progress of Science and useful Arts.”
The Supreme Court decision addresses the fallout from an August, 2011 ruling in John Wiley & Sons, Inc. v. Supap Kirtsaeng, in which Kirtsaeng, a Thai-born U.S. student was successfully sued by Wiley for importing and reselling in the U.S. foreign editions of Wiley textbooks made for exclusive sale abroad.
UPDATE: the following statements are among those that have come in regarding the ruling. More analysis to come:
“We are disappointed that the U.S. Supreme Court has decided in favor of Supap Kirtsaeng and overturned the Second Circuit’s ruling. It is a loss for the U.S. economy, and students and authors in the U.S. and around the world. Wiley wants to thank the many organizations, companies, and individuals who filed Amicus briefs and spoke publicly and privately in support of our position.” –Stephen M. Smith, Wiley President & CEO
“We are disappointed that today’s copyright decision by the US Supreme Court ignores broader issues critical to America’s ability to compete in the global marketplace…The decision will have significant ramifications for Americans who produce the books, music, movies and other content consumed avidly around the world…AAP expects that Congress will likely consider whether the impact of the Court’s divided ruling on the ability of US producers to effectively compete in global markets requires legislative clarification. AAP will be prepared to participate on behalf of publishers in whatever process Congress undertakes to consider and address these issues.” –Tom Allen, President and CEO, the Association of American Publishers
“The ruling for Kirtsaeng will send a tremor through the publishing industries, harming both U.S. businesses and consumers around the world…American publishers will face direct harm, because our markets will be open to a flood of copyrighted material that was intended for purchase overseas. By exploiting pricing models that are meant for students in undeveloped nations, importers both deny those students a full education, and threaten American publishers’ ability to do business abroad.” –Keith Kupferschmid, SIIA General Counsel and Senior Vice President for Intellectual Property Policy and Enforcement
“The 6-3 opinion is a total victory for libraries and our users. It vindicates the foundational principle of the first sale doctrine—if you bought it, you own it. All who believe in that principle, and the certainty it provides to libraries and many other parts of our culture and economy, should join us in applauding the Court for correcting the legal ambiguity that led to this case in the first place. It is especially gratifying that Justice Breyer’s majority opinion focused on the considerable harm that the Second Circuit’s opinion would have caused libraries…Wiley and others who sought a right of perpetual control over these materials may turn to Congress to roll back the Court’s wise decision. Libraries and our allies remain vigilant in defense of first sale and all of the rights that make it possible to serve our communities.—Statement from the Library Copyright Alliance, a coalition of major library organizations.
“This decision definitively affirms the first sale doctrine, cementing the right of consumers and organizations to sell, lend and give away goods that they bought and own, regardless of where those goods were made. While we are energized by this decision, we expect that some will continue attempts to eliminate owners’ rights, reduce competition in the marketplace and restrict the global trade of authentic goods. ORI will continue to be vigilant and diligent in protecting owners’ rights now and in the future and we expect policymakers to do the same.” –Andrew Shore, Executive Director of the Owners Rights Initiative
