The “first sale” doctrine is a defe

The “first sale” doctrine is a defense to copyright infringement based on violation of the right to distribute a protected work. Once a tangible copy (e.g. a book or DVD) of a work has been sold, the rightsholder no longer has any power over further sales of that particular tangible copy of the work. That is, the purchaser of a copy of a work may do with it whatever he or she pleases, including selling the work to a third party. In this case, Kirtsaeng argued that the textbooks were properly produced and sold under a license, and that Wiley could not maintain an infringement action due to the protection afforded by the first sale doctrine.
More specifically, Wiley argued that the textbooks were not “lawfully made under [the Copyright Act],” as is required for application of the first sale doctrine, because they were made outside the U.S. The Supreme Court disagreed, however, reasoning that nothing in the phrase specifies a location or geographic limitation. The Court also expressed an unwillingness to issue a decision that would require a number of international arrangements to be re-ordered due to overseas parties having to now seek permission from original rightsholders to dispose of protected items in their possession.
The effect of the ruling will be quite interesting. Rightsholders are faced with a need to somehow prevent the flow of protected works from “low-cost” countries to “high-cost” countries. Future practices may come down to a question of whether accessing markets abroad is worth the eventual losses that result when their products return to the U.S. and harm their own high-value sales in their native market.