The First Sale Doctrine Extends Beyond U.S. Borders 

Can a retailer purchase books overseas and resell them in the U.S. for less? According to the U.S. Supreme Court, yes.

In Kirtsaeng v. John Wiley & Sons, Inc., No. 11-697, a foreign exchange student did just that.  John Wiley & Sons publishes academic textbooks and sells foreign editions.  The foreign editions are sold for much less than the U.S. editions.  Kirstaeng asked his family and friends to ship the books to him in the U.S. where he was studying. He then sold the books and made a sizable profit.   John Wiley & Sons sued for infringement, but the U.S. Supreme Court found in favor of the foreign exchange student holding that the first sale doctrine has no geographical limitation.  Thus, the first sale doctrine applies to copies of a copyrighted work lawfully made abroad.

The point of contention in this battle was the language in 17 U.S.C. Section 109(a) of the Copyright Act, also known as the first sale doctrine, specifically “lawfully made under this title.”  At issue, was whether the language imposed a geographical limitation or whether the first sale doctrine simply meant goods acquired in accordance with the Act. The Supreme Court decided the latter relying mainly on the statutory language.  The Act does not contain any mention of geography.  Looking to the history of the first sale doctrine, the court similarly found no mention of geographical limitations.  The court also declined to extend a limitation because of the implications it may have on foreign trade.

What this means for copyright holders?  Publishers may see diminished earnings from the resale of foreign books in the U.S. U.S. book retailers may begin to close due to the less costly foreign editions being sold in the U.S.  What this means for consumers?  Publishers may stop selling foreign editions or raise the price for those books manufactured abroad.   This holding resolved a split among the circuit courts.

New Forum for IP in the Central Valley

Coleman & Horowitt, LLP, a litigation and transactions firm with offices in Fresno and Los Angeles, has created the Central Valley IP blog.  Here, we will hopefully provide useful content for those interested in IP in California's Central Valley, the home of agriculture and a hidden gem for entrepreneurs.  Let us know what you want to read about.