Section 106(3) of the Copyright Act gives the owner of a copyrighted work the exclusive right to distribute or to authorize the distribution of copies or phonorecords of it to the public by sale or other transfer of ownership, or by rental, lease, or lending. However, this principle is modified by what is known as the “first sale doctrine” which is embodied in Section 109 of the Copyright Act. That Section provides in part that, “Notwithstanding the provisions of section 106(3), the owner of a particular copy or phonorecord lawfully made under this title, 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 or phonorecord.” In Kirtsaeng v. John Wiley & Sons, Inc., No. 11-697 (U.S. Mar. 19, 2013) decided by the U.S. Supreme Court in March, the court held that the phrase, “lawfully made under this title,” applied to works created outside the United States.
If that latter principle did not apply, Justice Breyer, writing for the majority, pointed out, a legitimate purchaser of a video game made in Japan or a film made in Germany could be prevented from selling or giving away copies of that game or film. It is important to note the “first sale doctrine” applies to the owner of a particular copyrighted work. If you have in your possession software, which you have “licensed,” you are not the owner of it; you are merely a licensee, and the “first sale doctrine” doesn’t apply to you. Such licenses often restrict you to using that software on one computer except that you may make a backup copy for archival purposes or may limit you to using that software on two or three computers.
In this case, Mr. Kirtsaeng, a graduate student from Thailand attending the University of Southern California paid for graduate school by buying inexpensive English language textbooks in Thailand and reselling them in the U.S. John Wiley, a textbook publisher, sued him for copyright infringement and won a $600,000 judgment in a New York court. [Note Kirtsaeng is reported to have generated $900,000 in revenue from his textbook sales.] Kirtsaeng was ordered to turn over his golf clubs, among other possessions, as partial payment. In its March decision the Supreme Court threw out that judgment and held that the “first sale doctrine” applied to him.
The Motion Picture Association of America took issue with this decision complaining that now a studio could not release a movie on DVD in one market while the movie was still in theaters in the United States … without incurring the risk of the unauthorized importation of those discs to the U.S.
As for Mr. Kirtsaeng, after earning his doctorate in Math, he is teaching in Thailand. His Linked in page states he is a “Mathematician specializing in contact/symplectic geometry.” According to Wikipedia, “Symplectic Geometry” is a is a branch of differential geometry and differential topology which studies symplectic manifolds; that is, differentiable manifolds equipped with a closed, nondegenerate 2-form. I guess an M.B.A. was beneath him.
