The U.S. Supreme Court has determined that a Thai student who came to the United States to study mathematics at Cornell University and earned money by selling the academic textbooks his family and friends purchased in Thailand at low prices and mailed to him in the United States did not infringe the publisher’s copyrights. Kirtsaeng v. John Wiley & Sons, Inc., No. 11-697 (U.S., decided March 19, 2013).
In an opinion authored by Justice Stephen Breyer, the Court majority agreed with the student that the “first sale” of the books, which were lawfully printed and sold abroad under a contract with the U.S. publisher, exhausted the copyright owner’s exclusive 17 U.S.C. § 106(3) distribution right. According to the majority, the common-law “first sale” doctrine makes no geographical distinctions. The Court found the concerns of amici—booksellers, libraries, museums, and retailers whose practices have long involved selling or lending books lawfully obtained from foreign booksellers—too significant to abrogate the “first sale” protection.
Dissenting Justice Ruth Bader Ginsburg, joined in part by Justices Anthony Kennedy and Antonin Scalia, rejected the majority’s “embrace of ‘international exhaustion.’” She opined that the 600 books which the student sold were lawfully made not under U.S. copyright law, but instead, under the law of some other country. Thus, the student’s “unauthorized importation constitutes copyright infringement under § 602(a)(1).”