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Prue Adler
Copyright & Intellectual Property Policies

First Sale and Related Court Cases

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The “first-sale doctrine” is the provision in the Copyright Act that allows any purchaser of a legal copy of a book or other copyrighted work to sell or lend that copy. Libraries rely on the doctrine to protect many core activities, including lending books and other materials in their collections.

The first-sale doctrine is codified at Section 109 of the Copyright Act, which says that first-sale rights apply only to copies "lawfully made under this Title," i.e., Title 17 of the US Code, where the copyright law is codified. Recent court cases have raised the question of whether this language should be interpreted to exclude works manufactured abroad, where US law does not apply and hence manufacture could be said not to be "under" Title 17. Others argue that a work's manufacture is "lawful under this Title" if it does not violate US copyright law, regardless of whether the law technically could be enforced.

In the case Supap Kirtsaeng v. Wiley & Sons, Wiley, a publisher of textbooks and other materials, claims Kirtsaeng infringed its copyrights by re-selling in the US cheaper foreign editions of Wiley textbooks that Kirtsaeng's family lawfully purchased abroad. First sale would ordinarily permit such re-selling, but the works were printed abroad and Wiley is asking the US Supreme Court to interpret Section 109 as applying only to domestically made copies. The Court began oral arguments on October 29, 2012.

In Costco v. Omega, a first-sale case involving the importation of luxury watches with copyrighted logos on them, the Court was deadlocked 4-4, leaving the issue unresolved. Justice Kagan recused herself from the case due to her participation in the litigation when she was Solicitor General. Justice Kagan will participate in the Kirtsaeng case.