Under the doctrine of “first sale,” owners of objects are permitted to resell them without violating the exclusive right of distribution accorded copyright owners under US copyright law. Last week, the US Supreme Court, the court in Kirtsaeng v. John Wiley found that the doctrine of first sale was not limited to US copyrighted works but serves as a defense from infringement for any previously sold materials, domestic or imported.
In Kirtsaeng, a student realized that he could purchase his US textbooks in foreign countries for less money. So he bought and sold imported but authentic textbooks. The publisher John Wiley & Sons sued the student book seller, who defended by claiming sales were permitted by the doctrine of “first sale.” The 2nd Circuit Court of Appeals ruled in 2011 against the student book seller, holding that the first sale doctrine applied only to materials produced in the US. The student book seller appealed this decision in the US Supreme Court.
An earlier Supreme Court case Quality King v. L’anza Research, sought to end the line of protectionist “gray market cases” that protected US copyright owners from competition from cheaper but authentic (non-counterfeit) goods imported from foreign markets. A decision in the 9th Circuit, Costco v. Omega (affrmed by SCOTUS), found that the doctrine of first sale is unavailable as a defense to infringement claims on unauthorized sales of authenticate imported watches bearing a copyrighted design in the US unless the copyright owner previously sold or authorized sales of gray market watches in the US.
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