A concurring opinion was written by Justice Kagan and joined by Justice Alito. The concurring opinion points out that the combination of the Kirtsaeng decision and the Court’s 1998 decision in Quality King v. L’anza destroys the copyright owner’s ability to engage in market segmentation and price differentiation. Justice Kagan points out that that result is due to an incorrect decision in L’Anza, not the decision in Kirtsaeng. She then calls on Congress to fix the problem if it deems appropriate.
The dissenting opinion was written by Justice Ginsburg and joined by Justices Kennedy and Scalia. Justice Ginsburg called the Court’s decision “absurd” and its interpretation of the phrase “lawfully made under this title” an “unnatural construction.” As to the parade of horribles, Justice Ginsburg said: