JOHN WILEY & SONS, INC. v. KIRTSAENG
654 F.3d 210 (2011)
JOHN WILEY & SONS, INC., Plaintiff-Appellee,
Supap KIRTSAENG, doing business as Bluechristine99, Defendant-Appellant.
Docket No. 09-4896-cv.
United States Court of Appeals, Second Circuit.
Argued: May 19, 2010.
Decided: August 15, 2011.
John T. Mitchell, Interaction Law, Washington, DC, for amici curiae Entertainment Merchants Association and National Association of Recording Merchandisers.
Norman H. Levine (Aaron J. Moss, on the brief), Greenberg Glusker Fields Claman & Machtinger LLP, Los Angeles, CA, for amicus curiae Costco Wholesale Corporation.
Charles A. Weiss, Kenyon & Kenyon LLP, (Mark A. Abate, Goodwin Proctor LLP, on the brief), New York, NY, for amicus curiae New York Intellectual Property Law Association, in support of plaintiff-appellee.
Before: CABRANES and KATZMANN, Circuit Judges, and MURTHA, District Judge.*
Judge MURTHA dissents in a separate opinion.
JOSÉ A. CABRANES, Circuit Judge:
The "first sale doctrine" in copyright law permits the owner of a lawfully purchased copy of a copyrighted work to resell it without limitations imposed by the copyright
holder.1 The existence of the doctrine dates to 1908, when the Supreme Court held that the owner of a copyright could not impose price controls on sales of copies of a copyrighted work beyond the initial sale.2 Congress codified the doctrine in successive Copyright Acts, beginning with the Copyright Act of 1909.3
The principal question presented in this appeal is whether the first sale doctrine, 17 U.S.C. § 109(a), applies to copies of copyrighted works produced outside of the United States but imported and resold in the United States. Under another basic copyright statute, it is ordinarily the case that "[i]mportation into the United States, without the authority of the owner of copyright under [the Copyright Act], of copies... of a work that have been acquired outside the United States is an infringement of the [owner's] exclusive right to distribute copies...."4
Defendant contends, however, that individuals may import and resell books manufactured abroad pursuant to 17 U.S.C. § 109(a), which provides that "the owner of a particular copy ... lawfully made under [the Copyright Act], 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."
Defendant's claim is an issue of first impression in our Court.5BACKGROUND
A. The Parties