2d Cir: Copyright “first sale doctrine” applies only to U.S.-manufactured works

Last year in Omega S.A. v. Costco Wholesale Corp., the Supreme Court was set to decide whether the 9th Circuit correctly held that “first sale doctrine” under 17 U.S.C.§ 109(a)—which applies to copies “lawfully made under this title”—does not apply to items manufactured outside the United States unless they were previously imported and sold in the U.S. with the copyright owner’s permission. But dividing 4-4, it was able only to issue a non-precedential affirmance.

Today, a 2-1 majority of the 2d Circuit in John Wiley & Sons, Inc. v. Kirtsaeng, No. 09-4896 (Aug. 15, 2011), went a bit further than the 9th Circuit, holding that the § 109(a) defense applies, without conditions, only to domestically-manufactured works. The court believed that this reading comports better with a copyright holder’s right under § 602(a)(1) to prohibit the importation into the U.S. of copyrighted works acquired abroad. In other words, applying § 109(a) to works manufactured abroad would render § 602(a)(1) impotent in the majority of cases.