Kirtsaeng v. Wiley Decision

I mentioned this case in an earlier post about First Sale Doctrine, and today came across the court decision in the case of Kirtsaeng v. Wiley.  In a 6-3 vote, the court decided in favor of Kirtsaeng (see full court opinion).  From Justice Stephen Breyer:

In our view, the answers to these questions are, yes.  We hold that the "first sale" doctrine applies to copies of a copyrighted work lawfully made abroad.

 Some more detail on application and coverage:

The act does not instantly protect an American copyright holder from unauthorized piracy taking place abroad.  But that fact does not mean the Act is inapplicable to copies made abroad. As a matter of ordinary English, one can say that a statute imposing, say, a tariff upon "any rhododendron grown in Nepal" applies to all Nepalese rhododendrons.  And, similarly, one can say that the American Copyright Act is applicable to all pirated copies including those printed overseas.  Indeed, the Act itself makes clear that (in the Solicitor General's language) foreign-printed copies are "subject to" the Act §602(a)(2) (2006 ed., Supp. V) (referring to importation of copies "the making of which eitehr constituted an infringement of copyright or which would have constituted an infringement of copyright if this title had been applicable"); Brief for United States 5.  See also post, at 6 (suggesting that "made under" may be read as "subject to"). 

The appropriateness of this linguistic usage is underscored by the fact that §104 of the Act itself says that works "subject to protection under this title" include unpublished works "without regard to the nationality or domicile of the author," and works "first published" in any one of the nearly 180 nations that have signed a copyright treaty with the United States.  §§104(a), (b) (2006 ed.) (emphasis added); §101 (2006 ed., Supp. V) (defining "treaty party"); U.S. Copyright Office, Circular NO. 38A, International Copyright Relations of the United States Act "applies" to an Irish manuscript lying in its author's Dublic desk drawer as well as to an original recording of a ballet performance first made in Japan and now on display in a Kyoto art gallery.

A big part of the decision seems to hinge on the qualifying terms of the Copyright code refering to copies "lawfully made under this title."  In fact the court acknowledges that technically someone can try and prohibit the resale of imported copies, but that reading the law one way over the other raises more problems than it solves.

We see now ay, however, to reconcile this half geographical/half-non-geographical interpretation with the language of the phrase, "lawfully made under this title."  As a matter of English, it would seem that those five words either do cover copies made abroad or they do not.

In sum, we believe that geographical interpretations create more linguistic problems than they resolve.  And considerations of simplicity and coherence tip the purely linguistic balance in Kirtsaeng's, nongeographical, favor.

Well, I'm glad I'm not the only one who finds copyright law often vague and confusing...  There is further argument besides just linguistic, but finding the language of the law in support is strong.

Further on we have discussion of how an interpretation deciding against Kirtsaeng would have repercussions for other copyright exemptions, including sections 106, 109, and 110.  There are several examples, but I believe that the first one demonstrates some of the absurdity that would result with a decision against Kirtsaeng based on language.

(1)Section 109(c) says that, despite the copyright owner's exclusive right "to display" a copyrighted work (provided in §106(5)), the owner of a particular copy "lawfully made under this title" may publicly display it without further authorization.  To interpret these words geographically would mean that one who buys a copyrighted work of art, a poster, or even a bumper sticker, in Canada, in Europe, in Asia, could not display it in America without the copyright owner's further authorization.

There is also several pages going into detail about all the issues that would arise from a decision against Kirtsaeng in regards to libraries, the resale of purchased items including cars and other hardware, museums, or even sale of items in stores due to the initial purchase overseas and importation to resell as commercial goods to consumers.


Obviously it was not unanimous in favor of Kirtsaeng, but still a 6-3 decision that strongly addresses many of the fears about erosion of First Sale protection.  In many ways reading the opinions in favor of Kirtsaeng was unsettling to see some of the areas that would potentially be affected beyond the initial scope I had considered.  Court decisions are not exactly "light reading" but I found this one worth reading, and recommend reading it if you are at all interested in copyright law.