Academic journal article Journal of Law and Education

Does Kirtsaeng V. Wiley Open the Door for an Abuse of the First-Sale Doctrine?

Academic journal article Journal of Law and Education

Does Kirtsaeng V. Wiley Open the Door for an Abuse of the First-Sale Doctrine?

Article excerpt


Copyright law in the United States has been a topic of debate in cases heard before the Supreme Court for decades.1 Whether it is in dealing with musician's rights regarding their music,2 fair use for educators in the classroom,3 or, as was the situation recently decided in Kirtsaeng v. Wiley,4 the first-sale doctrine,5 there is always another copyright issue ripe for review.

This seemingly never-ending sequence of issues is due in large part to the improvements in technology and communication in the decades since the Copyright Act was first developed. These improvements, especially the Internet, have made it significantly easier to obtain information. The digital flow of information has increased, but it is also much easier to buy and sell products, such as textbooks, from thousands of miles away. This has given way to a significant increase in international sales among consumers.

This Note will highlight the first-sale doctrine and the effect of the Supreme Court's decision in Kirtsaeng, in both the United States and abroad. Discussion will analyze the decision in Kirtsaeng, arguing the Court was incorrect and that more protection is needed for copyright owners to avoid abuse of the first-sale doctrine.


The Kirtsaeng case rests solely upon an interpretation of the Copyright Act and whether it was violated when an individual imported books for the purpose of reselling them for profit in the United States.6 In this section, Copyright Law is explained generally and its application explored. Kirtsaeng is discussed through an introduction of its facts, followed by a brief analysis of the Court's decision in that case.

A. Applicable Copyright Law Defined

The Congress created the first Copyright Act in 1790.7 Over the centuries, the Act has been modified through court decisions as well as amendments to the Act itself.

The first-sale doctrine was originally created in a Supreme Court decision that held, "One who has sold a copyrighted article, without restriction, has parted with all right to control the sale of it. The purchaser of a book, once sold by authority of the owner of the copyright, may sell it again, although he could not publish a new edition of it."8 This doctrine later was codified into the act: "[T]he owner of a particular copy ... lawfully made under this title, or any person authorized by such owner is entitled, without the authority of the copyright owner, to sell or otherwise dispose of the possession of that copy."9 This doctrine permits used CD and book exchange stores, as well as websites like eBay,10 to legally operate because the items they are reselling were, ideally, purchased legally the first time.

The Copyright Act also contains a provision for the importing and exporting of copyrighted goods.11 It currently states, "Importation into the United States, without the authority of the owner of the copyright under this title, of copies ... of a work that have been acquired outside of the United States is an infringement of the exclusive right to distribute copies."12 The general effect of this prohibition is that copyright owners can remain aware of where their products are being distributed and ensure that they are being properly compensated.

Each of these provisions in the current version of the Copyright Act is essential to the case brought by Wiley. In Kirtsaeng, the publisher alleged that it was a violation of the Act for Kirtsaeng to import textbooks into the United States for resale without the permission of the copyright owner, as is required by the Act.13 However, the Supreme Court held that the protections provided to consumers by the first-sale doctrine were enough to trump the issue of whether or not the books had been imported to the United States.14 The Court believed that the "geographical interpretations create[d] more linguistic problems than they resolve[d]."15 The Court assumes that based on the statutory context that Congress did not have geography in mind when writing the present version of the Act. …

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