Kirtsaeng v. John Wiley & Sons, Inc.
The Court ruled that the copyright law's "first sale" doctrine — which lets someone resell a lawfully bought copy without the copyright owner's further permission — applies even when the copy was manufactured and first sold outside the United States.
The decision means booksellers, libraries, museums, and everyday consumers who buy or resell foreign-made goods containing copyrighted material do not need special permission from copyright holders, a ruling that touches millions of books and countless imported products.
“We hold that the “first sale” doctrine applies to copies of a copyrighted work lawfully made abroad.”
The Court's core holding on whether the first-sale doctrine applies to foreign-made copies.
How it got here: A federal trial court and jury ruled for the publisher; the Second Circuit affirmed that first-sale protection doesn't cover foreign-made copies; Kirtsaeng asked the Supreme Court to resolve a circuit split.
The Case in Depth
What happened
Supap Kirtsaeng, a Thai citizen studying in the United States, had friends and family buy cheaper foreign-edition English-language textbooks in Thailand and mail them to him. He resold the books in the U.S. and kept the profit. The publisher, John Wiley & Sons, which had authorized its Asian subsidiary to sell those editions only abroad, sued him for copyright infringement.
The question before the Court
Could a student who bought cheap textbooks overseas resell them in the United States without the publisher's permission?
The Court's answer
Yes — the Court ruled that the first-sale doctrine, which lets the owner of a lawfully made copy resell it without the copyright owner's permission, applies no matter where that copy was manufactured. The five words at issue, "lawfully made under this title," were read to mean simply "made in compliance with U.S. copyright law," not "made inside the United States."
Because Wiley had authorized the making of the foreign textbooks, those books qualified as lawfully made, and Kirtsaeng's resale of them was therefore protected. The Court found this reading better supported by the statute's wording, its history, and the long-standing common-law rule against letting sellers control goods after they've been sold.
Curious how the Court got there? See the step-by-step legal reasoning →
Why it matters
Libraries, used-book dealers, and consumers who buy or resell foreign-manufactured goods (from textbooks to cars containing copyrighted software) no longer face the threat of copyright lawsuits just because those items were made abroad. Publishers and other copyright holders, however, lose a tool for keeping prices different in different countries.
What changes now
This is a final merits decision resolving the legal question, so the case goes back to the lower courts only to apply the ruling — Kirtsaeng's resale of the foreign-made textbooks is now protected by the first-sale doctrine, undercutting Wiley's infringement claim. The decision also affects how publishers, importers, and copyright owners generally structure international sales, since it limits their ability to use copyright law to block the resale of foreign-made goods in the U.S.
What this does not decide
The Court did not decide whether Congress could give copyright owners broader power to block imports through contracts or through amending the importation statute, and it left largely open (per Justice Kagan's concurrence) how far the separate importation ban in §602(a)(1) still reaches after this ruling combined with an earlier case, Quality King.
Concurrences and dissents
Concurrence — Justice Kagan
Justice Kagan agreed that the first-sale doctrine should not depend on where a copy was manufactured, but argued that the real source of any problem for publishers is the Court's earlier decision in Quality King, which held that the first-sale doctrine limits the separate importation ban. She suggested Congress could restore stronger import controls by revisiting Quality King rather than by narrowing the first-sale doctrine as Wiley wanted.
Dissent — Justice Ginsburg
“The Court’s bold departure from Congress’ design is all the more stunning, for it places the United States at the vanguard of the movement for “international exhaustion” of copyrights—a movement the United States has steadfastly resisted on the world stage.”Ginsburg's central objection that the ruling adopts a global copyright rule the U.S. has long opposed.
Justice Ginsburg argued that "lawfully made under this title" should mean made subject to and in compliance with U.S. copyright law, which by its nature applies only within U.S. territory, so foreign-manufactured copies fall outside first-sale protection. She warned the majority's reading effectively adopts an "international exhaustion" regime the United States has long resisted internationally, guts the separate importation ban, and would have affirmed the Second Circuit's ruling against Kirtsaeng.
How the Court got there
The legal reasoning, step by step
- The Court framed the question as whether the phrase "lawfully made under this title" in the first-sale statute (§109(a)) carries a geographical meaning (made in the U.S.) or a non-geographical one (made in compliance with U.S. copyright law, wherever manufactured).
- Reading the words literally, the Court found "under" could mean "in accordance with," giving each word in the phrase independent meaning, whereas the geographical reading required extra, unstated steps to import a location requirement into the text.
- The Court compared the current provision to its 1909 predecessor, which covered anyone who "lawfully obtained" a copy rather than only owners of a "lawfully made" one, and concluded the change was aimed at excluding lessees like movie-theater owners, not at adding a geography requirement.
- Applying the canon that a statute replacing a common-law rule is presumed to retain that rule's substance, the Court found the historic first-sale doctrine, dating to a 1908 case and English common law before that, drew no geographic lines.
- The Court weighed the practical consequences: a geographical reading would force libraries, used-book dealers, museums, and retailers to seek permission before lending, reselling, or displaying millions of foreign-made items, consequences it found too serious to attribute to Congress absent clearer instructions.
- The Court concluded that the non-geographical reading was the better reading of the statute, so copies of copyrighted works lawfully made abroad qualify for first-sale protection just as domestically made copies do.
Doctrinal impact
Cases affected by this decision
Distinguishes Quality King Distributors, Inc. v. L'anza Research Int'l, Inc. (523 U. S. 135)
That case involved copies made in the U.S. and sent abroad; the Court treats its language about foreign-made copies as non-binding dictum.
Reaffirms Bobbs-Merrill Co. v. Straus (210 U. S. 339)
The Court relies on this 1908 decision as establishing the first-sale doctrine with no geographic limits.