Kirtsaeng v. John Wiley & Sons, Inc.

KIRTSAENG, dba BLUECHRISTINE99 JOHN v. SONS,

WILEY & INC. No. Argued 11-697. Decided March October J., J., Court, opinion Breyer, Roberts, delivered the which C. Kagan, JJ., Kagan, J., and joined. filed' Thomas, Alito, Sotomayor, J., Ginsburg, concurring opinion, joined, post, p. in which 554. Alito, J., J., opinion, joined, filed a in which dissenting which Kennedy, Scalia, J., joined V-B-l, except post, p. as to Parts III and 557.

E. Joshua Rosenkranz cause for argued petitioner. Simp- Lisa T. Hurst, briefs were Annette L. With him on the son, and Sam P. Israel.

Theodore B. Olson the cause for respondent. argued D. and Scott McGill brief were Matthew With him on the P. Martin.

Deputy Solicitor General Stewart cause for the argued as amicus curiae support respondent. States Verrilli, Act General were Solicitor With him on the brief ing Delery, Attorney Arbus Assistant Melissa General Sherry, R. and Scott McIntosh.* American

*Briefs of cwriae were filed for the urging amici reversal Library Band-, Art Association et al. Jonathan the Association Mentzer, Pell, Museum Edward by Directors et M. Owen and al. C. Stefan Rover; Computer F. for and Dealers Interna- the Association Service tional, Inc., by Roy T. by Corp. Douglas Kari; Costco Wholesale W. for Jr., Untereiner, Lavinbuk; eBay Inc. Englert, Ariel N. for Alan E. and by Mer- Huser; et al. the Mary David B. and for Entertainment Salmons Mitchell; In- by chants for Industries Association et al. John T. Goodwill Elkin, ternational, Inc., Schaerr, Coberly, S. by Gene Linda Michael C. by Lane; and International Knowledge Ecology Thomas Patrick for Joseph Cox; by Lemley Krista L. A. and al. Mark for Powell’sBooks Inc. et Gratz; Feld, Siy, and C. Knowledge by for Harold Public et al. Sherwin opinion delivered the of the Court. Breyer Justice grants the Act Section “the owner of 106 of rights,” this title” “exclusive certain includ- ing copyrighted the ... distribute of the “to by public ownership.” work to the sale or transfer of other 106(3). qualified, rights by 17 U. S. C. These are however, application of various set forth in the next limitations §§ through several 122. Act, of the Those sec- sections rights,” typically exclusive in- tions, entitled on “Limitations (§107),permis- principle example, clude, for of “fair use” (§ 108), library reproduction sion for limited archival and the (§109). doctrine at doctrine here, issue the “first sale” Section sale” sets forth the “first doctrine as follows: 106(3) “Notwithstanding provisions [the of section grants section that exclusive distribution owner rights], particular copy phonorecord or the owner of a lawfully entitled, ... made under this title without authority of the to sell other- owner, phonorec- dispose possession of that wise added.) (Emphasis ord.” W.

Corynne Stephen Center, McSherry; Inc., by for Retail al. Litigation et Greenstein; Cannon and D. Property 25 Intellectual Law Seth and for Schultz, pro L. se. by Daryl and Jason Professors Joseffer Briefs of amici curiae were filed the American urging affirmance for Goldstein, Bellows, Tejinder Laurel G. Thomas C. by Bar Association and Kevin Singh; Property by for the Intellectual Law Association American Barber, Tottis and G. William of American Publishers for the Association Smith, Sims; Charles M. by S. Paul by Alliance for Business Software DeSanctis, Heilman, Amunson; Ring Michael B. Matthew S. and Jessica Graff, by George L. Vic- for Property the Intellectual Association Owners Cundiff, Phillips toria A. K. Richard F. and Kevin Myers, Rebecca and Rhodes, se; Bain; H. E. LLC, pro Scott by both for for the LicenseLogic, Waxman, Inc., Seth P. America, by Motion et al. Picture Association Carroll, Pariser, Moss, L. Randolph D. Catherine M. A. and for Jennifer Panner, K. Aaron M. Omega Kellogg S. A. Michael by for the Soft- Mohr; by Christopher A. for Industry ware and Information Association Heifetz; Beth Hugh Text and Academic Authors Association Hansen, pro Mr. Hansen, by C. se. 524 106(3) of, §

Thus, copy even distribution of though forbids novel without say, copyright copyrighted Herzog § that, Herzog owner’s once a permission, copy adds (or lawfully been lawfully has sold its otherwise ownership owners copy transferred), and buyer subsequent jar- free are as wish. In dispose they copyright owner’s “first sale” has “exhausted” gon, 106(3) § exclusive distribution right. if the abroad

What, however, was Herzog printed copy permis- then sold with the owner’s initially Is the sion? Does the “first doctrine still apply? sale” like the of a manufactured buyer, buyer domestically copy, free to into the United dispose States bring it as he or she wishes?

To the matter an put “importation” provision, technically, § 602(a)(1), says States, the au- into without

“[importation the United title, of cop- of the owner of under this thority ies been outside the acquired ... of work that have is an United States the exclusive infringement . . under section 106 . to distribute . . . added). V) 602(a)(1) (2006 U. S. §C. ed., Supp. (emphasis 602(a)(1) § Thus without makes a copy clear importing permission right. violates the exclusive distribution §106(3) 602(a)(1) § But to the so, refers doing explicitly said, exclusive we have just distribution As right. its terms to” doctrines and “[sjubject princi- the various 109(a)’s “first §§ ples contained including through sale” Do limitation. those modifications apply—in same does the “first particular, apply—when sale” modification 602(a)(1) whether copy? considering prohibits importing Research Distributors, Inc. v. Danza In King Quality Inc., §602(a)(l)’s Int’l, we (1998), 523 U. S. held that 106(3)’s incorpo- reference to distribution right exclusive limitations, rates the particu- later subsections’ including, seem lar, Thus, “first sale” 109. it might doctrine of 602(a)(1) notwithstanding, buys copy that, a one who abroad freely copy import can that into the United States and dis- pose just bought copy it,of as he could had he in the United States. Quality King

But an in which considered instance copy, though purchased initially abroad, was manufactured (and sold). in the United and States then sent abroad This Quality King important case is like but for one fact. The copies at issue here manufactured abroad. fact were That is important says because that the “first sale” doctrine applies particular phonorecord lawfully copy to “a made under this title.” And whether we must decide here “lawfully five words, title,” make a critical legal difference.

Putting side, section to the we numbers ask whether the buyer applies protect “first sale” doctrine to a or other lawful (of work) copy lawfully copyrighted owner of a manufac- buyer bring copy tured abroad. into Can (and away) give obtaining States sell it or without permission Can, to do so from the owner? for ex- ample, say, purchases, bookstore, someone at a used who printed subsequently copy- book abroad resell it without permission? yes. questions are, In our view, the answers to these We applies copy- hold that the doctrine of a “first sale” righted lawfully work made abroad.

I A Respondent, Wiley publishes academic Sons, Inc., John & Wiley foreign various textbooks. obtains from its authors assignments, permis- and licenses, domestic point purposes, present refer sions—to the can, we Wiley as the American owner. See relevant (CA2 2011). Wiley assigns 210, 213, F. 3d n. 6 foreign subsidiary, often wholly Wiley its John & Sons owned (Asia) Wiley’s rights publish, print, Pte and sell Ltd.,

English-language App. to Pet. for Cert. abroad. textbooks foreign copy Wiley will edition 47a-48a. Each likely of a Asia making copy language to be contain clear that the region only particular country geographical out- sold in a side the at 213. 3d, United States. 654 F. Wiley’s says: example,

For American edition rights Wiley “Copyright Inc. All Sons, & © John of America.” reserved. . . . Printed in the United States 2008). (8th Physics, p. A ed. Walker, J. Fundamentals of vi copy Wiley says: of that book Asia’s Asian edition (Asia) Ltd[.] Wiley

“Copyright Pte & Sons © 2008 John rights for sale All is authorized reserved. This book may only Europe, East and the Middle Asia, Africa, Exporta- exported [sic] be out territories. of these region importation tion to another from or of this book illegal ais and without Publisher’s authorization may rights. violation The Publisher of the Publisher’s legal rights. in take . . . Printed action to enforce its (8th Physics, p. Asia.” vi Walker, J. Fundamentals of ed.). Wiley ed. 2008 Int’l Student say: foreign copies Both the and the American part may reproduced, publication stored “No of be any system, in a form or retrieval or transmitted except permitted means . . . under Sections as Copyright Act.” Com- or 108 of the 1976 States (Int’l ed.) pare, e.g., supra, vi Walker, at ibid. (American ed.). essentially upshot equivalent is that there are two Wiley version at each textbook, 3d,

versions of a 654 F. (1) Wiley’spermission: an Amer- manufactured and sold with (2) printed and States, ican version and sold in the United Wiley foreign abroad. And version and sold manufactured state that makes they version certain that of the second (without permission) the United are into not to be taken States. Ibid.

Petitioner, Supap Thailand, citizen moved Kirtsaeng, to the United States study 1997 to mathematics at Cornell Ibid. He University. for his education with paid the help aof Thai Government which scholarship required him to teach in Thailand for 10 on his return. years Brief for Petitioner 7. Kirtsaeng successfully completed his under- at graduate Cornell, courses successfully completed Ph. D. at program mathematics University Southern California, then, as returned to Thailand to promised, Ibid. teach. he was in the United States, While studying asked his friends and in Thailand to Kirtsaeng family buy edition textbooks at Thai foreign English-language bookshops, where sold at low and mail they prices, them to Id., him in the United at 7-8. Kirtsaeng States.

then sell them, friends, reimburse his family and keep to Pet. for 48a-49a. profit. Cert. App.

B In 2008 Wiley this federal lawsuit Kirt- brought against 654 F. saeng 3d, 213. infringement. Wiley claimed that unauthorized of its Kirtsaeng’s books and his later those resale of books amounted to an 106(3) exclusive infringement Wiley’s distribute as well as 602’s related U. S. import prohibition. C. 106(3) (2006 V). §§ 602(a) (2006 ed.), ed., also Supp. (2006 ed.) action). 204-211. (authorizing infringement App. “

Kirtsaeng that the books he had were replied acquired ‘law- fully made’” and that he had them acquired legitimately. in Record No. 3. (SDNY), l:08-CV-7834-DCP Doc. p. §109(a)’s Thus, in doctrine view, his “first sale” permitted him to resell or otherwise of the books without dispose Id., owner’s farther copyright 2-3. permission.

The District Court could not Kirtsaeng held that assert the “first sale” defense that doctrine because, view, its (even does not to if apply goods” “foreign-manufactured made abroad with owner’s permission). App. Kirtsaeng jury

to Pet. 72a. then found that for Cert. by willfully infringed Wiley’s copyrights had American sell- ing eight importing copies authorization without Wiley’s statutory copyrighted And it assessed dam- titles. work). ($75,000 ages per 3d, 654 F. at 215. $600,000 appeal, split agreed panel with On of the Second Circuit pointed Id., District Court. at 222. It out 109(a)’s only applies “first sale” doctrine “the owner particular copy lawfully Id., at ... made under this title” added). majority’s (emphasis and n. 218-219, And, language view, this means that the “first sale” doctrine does apply copies copyrighted not of American works manufac- dissenting judge thought Id., tured abroad. A at 221. “lawfully “to a the words place made this title” do not refer under par- “focu[s] of manufacture” rather on whether but lawfully America’s ticular was manufactured under” the manufac- statute, and that “the lawfulness of particular copy judged by ture of a should be U. S. J.). (opinion law.” at 226 Id., Murtha, granted Kirtsaeng’s petition We to consider certiorari question light among of different views Circuits. (case below) (“first Compare id., at 221 sale” doctrine does States), apply copies outside the United manufactured Omega Corp., S. A. v. 541 F. 3d Costco Wholesale (CA9 2008) (“first applies doctrine manu- sale” only factured outside the if an authorized first United States States), equally sale occurs within the aff’d an (2010), Int’l, court, divided 562 U. and Sebastian Inc. v. S. 40 (PTY) Consumer F. 2d n. Ltd., 1093, 1098, Contacts (CA3 1988) (limitation sale doctrine to of the first comfortably made within the “does not fit United States Act”). within the scheme of the I I lawfully We must decide words whether the 109(a)’s scope this title” restrict the “first sale” doctrine geographically. Circuit, the Ninth Circuit, The Second amicus) (as Wiley, all read those and the Solicitor General imposing geographical as a form of limitation. words they held that limit the “first sale” doctrine Second Circuit particular copies Copy in which the to “made territories (the says) copies “manu law,” Act is which Circuit are domestically,” of the United States.” factured not “outside added). Wiley (emphasis agrees that F. at 221-222 3d, copies “first sale” doctrine “to those five words limit the Copyright [United States] Act made in conformance with the says) (Wiley Copyright applicable,” where the Act is which apply copies means it made “outside the United does not copy “foreign production at States” and least not to exclusively Respondent 15- distribution Brief for abroad.” says Similarly, those five 16. General Solicitor applicability copies words limit doctrine’s the “first sale” subject [the compliance with ‘“made to and ” (the says) copies “made which are Act],’ Solicitor General for United States as Amicus in the United States.” Brief States) (hereinafter (emphasis Curiae 5 Brief for United added). held that words And Ninth has those Circuit (1) applicability law limit the “first sale” doctrine’s (2) copies lawfully fully States, made in the United initially in the but sold made outside United States permission. Den-bicare owner’s United States with the Toys Us, Inc., A. 84 F. 3d 1149- U . S. Inc. v. “R” (1996). 109(a)’s interpretations, any geographical Under of these Wiley apply Asia “first to the books sale” doctrine would not despite an American And, issue here. buys permission one who abroad, to make copyrighted a re- work—whether at such book or other library sale—could not store, Internet, tail over the or at a (or of) particular copy dispose without resell otherwise permission. further “lawfully

Kirtsaeng, made under however, reads the words imposing wow-geographical limitation. He title” as says they or “in com- made “in accordance with” mean

pliance Copyright 26. with” the Act. Brief Petitioner 109(a)’s apply to In that would case, doctrine “first sale” copyrighted long themet re- works as as their manufacture quirements particular, In the law. American apply manufac- doctrine are where, here, would as permission tured owner. abroad with of the the authorize). (referring the 109(a)’s language, context, In view, our its history to- taken doctrine, common-law sale” “first gether, ?wm-geographical interpretation. We also favor a prac- Congress doubt that to create have intended geographical copyright-related in- tical with which harms terpretation scholarly, ordinary artistic, com- would threaten II-D, Part mercial, consumer activities. See infra. consequently Kirtsaeng’s nongeographical We conclude reading reading is the the Act. better

A 109(a) Kirtsaeng’s language literally The read favors “lawfully nongeographical namely, interpretation, “in title” “in accordance with” or this means made compliance language Copyright with” Act. The says nothing geography. about The word “under” English “[i]n can mean Dic- accordance 18 Oxford with.” (2d 1989). tionary Dictionary ed. Law See also Black’s (6th 1990) to”). nongeographical (“according ed. And interpretation provides phrase each word of the five-word phrase, purpose. with a distinct The first two words “lawfully distinguish suggest made,” an those effort lawfully and the not, that were made that were from those words, last three set the standard title,” “under forth simple, reading nongeographical “lawful[ness].” Thus, pi- promotes objective (combating a traditional racy), linguistic word-by-word sense. and it makes geographical interpretation, however, bristles linguistic “lawfully” gives if little, difficulties. It the word (How %%-lawfully any, linguistic a book be could work to do. title”?) geography a statu- imports into It “made under this nothing explicitly tory provision says it. And it about may appear. complex at first is far more than Wiley, geographically, like the Second read the clause To emphasize the must first General, and the Circuit Solicitor Wiley title” to “under this reads Indeed, word “under.” Copyright Act where mean “in conformance with Respondent applicable.” 15. Brief for Act is step, arguing Wiley Act that the then take a second must only applicable” Ibid. And the States. the United “is Brief for United See must do the same. Solicitor General (“A copy ‘lawfully if this title’ Title made under 6 is States governs copy’s is made in the creation and 17 the post, requirements”). compliance also at See with 17’s Title (“under” something dissenting) describes J., 562 (Ginsburg, another”). by “governed regulated any difficulty other word nor that neither “under” One is English g., phrase 18 See, e. Oxford means “where.” the “under”). (definition It Dictionary, supra, 947-952 at might “subject post, 561-562, but as this at to,” see mean , acknowledged, a uni- repeatedly the word evades Court has meaning. 558 U. S. Holder, v. Kucana consistent See form, (2010) (“‘under’ chameleon”); INS, v. Ardestani is 245 (“under” (1991) dictionary “many defi- has 502 U. S. context”). meaning its its from and “must draw nitions” uncertainty difficulty the out of far arises A more serious step’s surrounding to complexity effort read the second “applica- necessary geographical into the word limitation the (or Copyright precisely, equivalent). is Where, ble” instantly protect an “applicable”? Act Act The does taking piracy unauthorized American holder from inap- the Act is place mean fact does not abroad. But that ordinary plicable copies matter of As a abroad. say, imposing, a tariff English, say that a statute one can Nepal” applies grown to all upon “any rhododendron Nepalese similarly, say that one can And, rhododendrons. cop- Copyright pirated applicable the American Act to all including printed ies, it- Indeed, the Act those overseas. (in language) self makes clear that General’s Solicitor foreign-printed “subject pirated to” the Act. are 602(a)(2) (2006 V) (referring Supp. ed., making infringe- “the of which either constituted an copyright, ment in- or which have an constituted fringement applicable”); if this title had been post, (suggesting Brief for United States 5. also to”). “subject may that “made under” be read as appropriateness linguistic usage of this is underscored says the fact that 104 of Act “sub- itself works ject protection unpublished under this title” include works regard nationality “without or domicile of the author” nearly published” and works na- “first one signed treaty tions that have the United (b) (2006 (2006 ed.) §§ 104(a), added); (emphasis States. V) Supp. (defining “treaty Copyright party”); ed., U. S. Of- fice, Circular 38A, No. International Relations (2010). ordinary English permits the United States Thus, say lying “applies” manuscript us to Act Irish to an original in its author’s Dublin desk drawer as well as to an recording performance Japan of a ballet first made in and display Kyoto gallery. now on in a art Cf. 4 M. Nimmer & (2012)(here- pp. Nimmer, D. 17-18, 17-19 17.02, Copyright) (noting principle inafter Nimmer that on the “copyright operation” laws do have extraterritorial “requires qualification”). some interpretation geographical produces

The Ninth Circuit’s greater linguistic difficulty. still said, that in- As we Circuit (1) terprets copies the sale” both “first doctrine to cover (2) copies manufactured in manu- States factured abroad but first sold in the United with States copyright permission. American Denbicare Respond- A., U. S. F. at 1149-1150. also Brief for 3d, “the at least excludes (suggesting clause ent exclusively foreign production for distribution aof (the abroad”); decide whether the need “not id., at 51 Court able, further distribu- to restrict be owner would purchaser of domestic “a downstream in the tion” case Whole- imports”); Costco for Petitioner authorized Brief p. 12 Corp. Omega, 08-1423, No. O. T. A., sale v. S. foreign copy- (excepting imported “made unrelated deleted)). (emphasis holders” may why have Circuit Ninth We can understand part necessary of its definition. thought add the second it II-D, without infra, Part describe, see As we shall later prevent a qualification could holder some a such away copies giving domestically reselling buyer even or from Germany, Japan, made in game film made in a of video (with design copyright) even China, made in dress fabric granted permission the for- if the holder has eign importation, initial domestic sale and an manufacture, Wiley be free copy. publisher such as of the A importation and sale print their abroad, allow its books prohibit from later students but States, within the United campus no see selling bookstore. We at a texts their used half-geographical/half-non- way, to reconcile however, phrase, language interpretation geographical English, “lawfully a matter As made under this title.” cover law- do words either five would seem that those they fully do not. made abroad interpretations cre- geographical

In we believe sum, they And consid- problems linguistic resolve. than ate more linguistic tip purely simplicity and coherence erations of nongeographical, Kirtsaeng’s, favor. balance

B statutory indi- contemporary context Both historical present writing version Congress, cate that when geography respect to his- 109(a), In in mind. did not have tory, 109(a)’s compare present language we with the lan- guage predecessor. predecessor of its immediate That said:

“[NJothing pre- in this Act shall be deemed to forbid, any copy copy- or vent, restrict the transfer of a righted possession lawfully work the which been has Copyright obtained.” 1909, Act §41, B5 Stat. added). (emphasis

See also §27, Act of 61 Stat. The 660. predecessor (and says nothing geography Wiley about does does). argue Congress, not that So we whether ask changing language, implicitly geographical its introduced a previously lacking. limitation that II-C, was Part also (discussing principle). 1909 codification of common-law infra comparison language A indicates it did not. The predecessor says protects “the the “first sale” doctrine any copy possession transfer of which has been law- fully present says obtained” The that “the owner version particular copy phonorecord lawfully of a or made under this dispose possession title is sell entitled to of the otherwise copy phonorecord.” change of that What does in lan- guage accomplish? language

The former referred to version those who “lawfully copy, are possessors owners of but mere who copy. present only obtained” version covers those “lawfully copy. who are owners of made” Whom does change might lawfully leave out? Who have obtained a copyrighted copy? of a work but not an- owned One the 1970 n (and during swer is owners of movie theaters, who before) often leased films from movie distributors or film- makers. See S. Film Distribution Donahue, American (1987) (describing producer-distributer and distributer- agreements); Relationship exhibitor Note, The Between Mo- Analysis tion Picture An Distribution and Exhibition: Bidding Legislation, Effects of Anti-Blind J. L. Comm/Ent. (1986). “lawfully 131, 135 had Because the owners theater

535 copies, earlier version could be read as obtained” their the might given allowing copy, e., i. to sell that have them protection. Because the theater owners them “first sale” change copies, their the in lan- owners, were not of lessees, (like lessees) they guage and other makes clear that bailees (Those advantage “first sale” doctrine. cannot take of the legislative history will confirmation in, find who find useful Judiciary, Copyright g., Law Re- on e. House Committee the Register Copyrights Report Supplementary of the vision, Copyright S. Law: 1965 on the Revision of U. General (Comm. p. Cong., pt. Print 6, 30 Bill, Sess., Revision 89th 1st Revision) (“[W]here 1965)(hereinafter per- a Law , copy- picture print from the son has rented of a motion right rent, lend, sell, he have owner, would no obtaining print dispose without first otherwise permission”). & also Platt Munk Co. (CA2 1963) Republic Graphics, v. F. 2d Inc., 315 J.) leasing (Friendly, (pointing predecessor statute’s out problem).) language explains objective perfectly the new well

This present including here at issue. five words version, copy that a lessee of a will now makes clear Section copy protection one who but owns a receive “first sale” protection, provided, course, will receive “first sale” pirated. “lawfully and not The new made” was copy may language that a be “law- also takes into account copy,say, phonorec- fully of a under this title” when through possession use of a com- ord, comes into its owner’s provides pulsory license, elsewhere, which “this title” legislative namely, Again, in 115. for those who find his- legislative Report tory makes this clear. useful, the relevant (1976) (“For example, any Rep. p. re- H. R. No. 94-1476, illegally ‘pirated’ phonorecord be in- sale of an an legally fringement, disposition phonorecord of a but the licensing provisions compulsory made under the section not”). 115 would provisions present support

Other statute also nongeographical interpretation. thing, For one the statute phases “manufacturing ap- out the clause,” clause peared importation in earlier statutes had limited (of works) many copies copyrighted printed outside the (“Prior July United States. 90 Stat. §601, public . . . the into or distribution the United consisting preponderantly States of of a work of non- literary prohibited por- dramatic material unless ... consisting tions of such material have been in manufactured Canada”). phasing the United States or The out this of sought equalize copies clause of treatment manufactured in Rep. America and manufactured H. abroad. See R. No. at 94-1476, 165-166. “equal principle, treatment” however, is difficult to

square geographical interpretation with a sale” “first grant copyright clause that would the holder of an American 532) (perhaps foreign supra, permanent a national, see (sales, control over the resales, American distribution chain distribution) gifts, respect printed and other in respect copies printed abroad but not in in America. And particularly Congress it is difficult to believe that would have sought unequal saying nothing this treatment while about (the manufacturing phaseout), in a while, related clause seeking opposite policy goal. kind of Cf. v. Golan (2012) (Congress Holder, 565 U. S. 302, has moved from copyright regime prior a entirely that, excluded for- eign protection regime copyright works from U. S. to a “ensure[s] foreign now that most whether works, or domes- governed regime” legal (emphasis tic, would be the same added)).

Finally, normally presume “lawfully we that the words carry meaning they made under this title” the same when appear Department in different but related sections. Revenue Industries, Ore. v. Inc., ACF 510 U. S. (1994). doing produces surprising But so here conse- quences. Consider: 109(c)

(1) despite says copyright that, Section display” copyrighted a “to work owner’s exclusive (provided §106(5)), in owner a particular “lawfully may publicly display title” made under this interpret To it without further authorization. these buys geographically that one mean who words poster, bumper copyrighted or even a art, work Europe, display in sticker, Canada, Asia, could not it in America without the owner’s further authorization. 109(e)

(2) specifically provides that the owner Section game particular copy copyrighted video arcade of a may “publicly perform “lawfully title” equipment” coin-operated display game or with- To inter- out the authorization of the owner. pret geographically that an means arcade these words (“without authority could owner (whether owner”) games perform display arcade new used) originally Japan. Cf. Baron- made in Red (CA4 Corp., v. 883 F. Park, Franklin Inc. Taito 2d 1989).

(3) 110(1) says teacher, that a without the Section perform authorization, allowed to is work) display copyrighted (say, an audiovisual work teaching activities”—unless “in course of face-to-face knowingly copy that “a was not law- the teacher used interpret fully these To words made under title.” geographically could that the teacher would mean authorization) (without copy of a film dur- use farther lawfully ing Mex- Canada, if class was Europe, Africa, or ico, Asia. §106

(4) provides introductory sentence, In its rights an of a “owner Act’s basic exclusive under this title.” The last three words cannot support a geographic interpretation.

Wiley basically accepts the first three but argues readings, that intended Congress the restrictive And consequences. argues context the words of the simply requires fourth example receive a different interpretation. Leaving the fourth to the shall II- example side, we Part explain D, infra, why we find it would have unlikely Congress intended these and other related consequences.

C A relevant canon statutory interpretation favors a non- geographical reading. a statute covers an issue “[W]hen previously governed by law,” the common we must presume that “Congress intended to the com- retain substance of mon law.” Samantar v. Yousuf, 560 U. n. 305, 320, S. (2010). See also Isbrandtsen Co. v. Johnson, 343 U. S. (1952) (“Statutes which . . . are invade common law to be read with a presumption favoring the retention long- established and familiar a statutory principles, except when evident”). to the purpose contrary is The “first sale” doctrine is a with an common-law doctrine impeccable historic In the pedigree. century 17th early Lord Coke explained common law’s refusal re- permit straints on the alienation of chattels. Little- Referring ton, who wrote in the 15th Gray, Two Contributions century, to Coke U. Studies, 72 Chi. (2005), L. Rev. Lord Coke wrote: a man be possessed horse,

“[If] of ... or of other chattell... or sell his whole interest... therein give condition that the or Vendee not alién- upon Donee shall the same, voi[d], tate] because his whole [condition] interest ... is out of he hath him, so as no possibility] aof it Reverter, Traffi[e], and Trade and and against man: bargaining and man and and betwee[n] contracting

539 it is within of Author that it the reason our should ouster power given him Coke, of all to him.” 1 E. Institutes (1628). England p. of the 223 360, Laws of permits A law that holder to control the resale similarly disposition “against or other of a chattel once sold is contracting.” bargaining Traffi[c], Trade and Ibid. impor- emphasizes the words, With these last few Coke leaving buyers compete goods free with each tance of goods. reselling disposing other of those when or otherwise competition, generally thought American law too has advantage including work to the freedom to can resell, g., Leegin Products, consumer. Leather Inc. e. Creative See, (2007)(restraints PSKS, v. with “man- Inc., 551U. S. 877, ifestly illegal; anticompetitive per se others are effects” are (internal subject quotation omit- to the rule of reason marks ted)); ¶ Hovenkamp, p. Law Antitrust P. Areeda & H. (3d 2006) (“[T]he objective policy principal antitrust ed. by encouraging is to maximize firms consumer welfare competitively”). behave from the

The “first sale” doctrine also frees courts ad- upon trying ministrative to enforce restrictions burden goods. readily And it avoids the difficult-to-trace, movable any Thus, effort. selective enforcement such inherent century surprising is not that for at least a the “first sale” played important role in American doctrine has an (1908); Straus, law. 210 U. See Bobbs-Merrill Co. v. S. Copy- Copyright Act 1084. See also 1909, §41, 35 Stat. on Law Discussions and Comments Revision, Further Preliminary Law, 88th Draft for Revised U. S. 1964)(Irwin (Comm. Cong., Karp pt. p. Print 2d Sess., League expressing concern for “the of America Authors’ you’ve very concept once sold a that, law basic resale”). copy legally, you can’t restrict its geographical distinc- The common-law makes no doctrine (where this Court tions; nor can we find in Bobbs-Merrill 109(a)’s doctrine) prede- applied first or in the “first sale” year provision, Congress cessor later. See which enacted supra, acknowledges, Rather, at 533. as the Solicitor General straightforward application “a Bobbs-Merrill” would of preclude applying to authorized “first sale” defense from And we Brief States 27. overseas. for United history language, purpose, can find no that would context, “straightforward application” rebut a here. of that doctrine statutory argues principle in- The dissent of that another terpretation points against reading, works out that our Congress elsewhere in the statute express something used different words to nongeographical reading we like the 602(a)(2) adopt. § (quoting (prohibiting Post, at the im- portation making of constituted “the of which either infringement copyright, an of have consti- or which would infringement ap- tuted an had if this title been deleted))). plicable” (emphasis Congress, the dissent Hence, 109(a)’s language believes, must have meant different (such something geo- mean different as the dissent’s own 109(a)). graphical interpretation aware, We are not interpretation inter- however, preting that forbids canon parts different same words used different of the thing. Regardless, roughly statute mean were the same interpretation there such a canon, the dissent’s Congress would also violate it. elsewhere That is because in the 1976 Act in the included “manufactured the words just express United States or 2588, which Canada,” 90 Stat. geographical thought about the same that the reads dissent 109(a)’s very language. into different

D technology Associations dealers, used-book libraries, companies, point consumer-goods retailers, and museums ways interpretation geographical various in which a copyright objectives, fail to further basic constitutional particular Progress “promot[ing] and useful of Science Arts.” §8, U. S. Art. cl. 8. Const., I, library Library tells us that col- Association The American published million books at abroad lections contain least nearly published (presumably, many in one first were nations, and,enjoy copyright-treaty American 532); supra, protection 1Ó4,see under 17 U. S. C.

many published in the United States but were first others geographi- printed a costs; lower and that abroad because of likely require interpretation the libraries to cal will obtain (or uncertainty) permission significant before at least create distributing circulating Brief these books. for or otherwise Library Amici 15- American et al. as Curiae Association (discussing potential limitations of id., 20. Cf. at 16-20, exceptions, including and archival the fair use defenses, 107-108). §§ Library Book Trade Almanac 511 See also and 2010) (D. significant Bogart (during “a 2000-2009 ed., 55th ed. nations”). foreign printing amount of book moved Library li- asks, are the Association How, the American permission millions of these to distribute braries -to obtain copyright they say, a owner of find, can books? How They may ago? foreign perhaps written decades book, present address. Brief for know holder’s (many Library indication books lack American Association [a] way practical place learn where manufacture; “no can printed”). addresses be And, was even where book contacting finding owners, and ne- found, them, costs stop high gotiating may cir- the libraries Are be indeed. displaying culating distributing the millions of books or printed abroad? their collections that were the time when Ben- that, from Used-book dealers tell us and jamin commercial built and Thomas Jefferson Franklin foreign readers have personal books, American libraries printed published Brief for bought abroad. used books (citing Stern, M. Inc. et al. as Amici Curiae Powell’s Books (1985)). Antiquarian Bookselling States “operat[ed] centuries” say they ... dealers that have applies. assumption doctrine the “first sale” under the geographical Brief for Powell’s Books a 7. But under inter- pretation contemporary buys, say, tourist who at Shake- (in speare Paris), foreign and Co. a dozen of a book might for American friends find that had violated the she easily predict law. The used-book dealers cannot foreign copyright may what the holder think about a reader’s they effort to sell a used of a novel. And believe geographical interpretation injure large portion will the used-book business.

Technology companies tell us that micro- “automobiles, phones, personal waves, calculators, tablets, mobile com- puters” copyrightable programs packag- contain software ing. Knowledge Brief for Public et al. as Amici Curiae Computer 10. also Brief for Association of Service and Many Dealers as Amicus International, Inc., Curiae 2. these items are made abroad with American (with permission imported holder’s permission) and then sold and Litiga- to the United States. Brief for Retail geographical Center, tion et Inc., al. Amici A as Curiae 4. interpretation prevent say, would car, the resale with- of, permission out the of the holder of each on each piece copyrighted no automobile software. Yet there is foreign regularly reason to believe that auto manufacturers permission compo- obtain this kind of from their software suppliers, Wiley contrary nent and did not indicate to the Arg. when asked. See Tr. of Oral 29-30. Without permission foreign car owner could not sell his or her used car. foreign tell

Retailers us that over trillion worth of $2.3 goods imported Litigation were in 2011. Brief for Retail buy many goods Center 8. American retailers of these after many a first sale abroad. Id., And, at 12. of these items carry, copyrighted “packaging, logos, bear, or contain labels, product every- [the of] and inserts and instructions for use day packaged goods from floor cleaners and health and beauty products Id., at 10-11. The breakfast cereals.” copy- add that American more traditional retailers sales of righted pic- music, motion works, books, “such as recorded likely magazines,” amount to over tures, and billion. $220 (electronic industry game Id., id., at at 10 is $16 9. See also billion). subject geographical interpretation many, A would disruptive impact if of the threat of them to the all, infringement Id., at 12. suits. their efforts

Art directors ask us to consider museum Cy Twombly, display by, say, foreign-produced René works Magritte, and others. Picasso, Henri Matisse, Pablo su-pra, (describing often makes such works at 532 how 104 geographi- “subject copyright protection). A to” American interpretation, they say, require the museums to cal they permission copyright owners before obtain from the display supra, copy- if could work, see at 537—even already the work to a for- owner has sold or donated eign Art Brief for Association of Museum Direc- museum. are

tors et al. as Amici 10-11. What the museums Curiae they copyright, to do, retained the if the ask, if the artist arguing group if of heirs is about found, artist cannot be copyright? Id., at who owns which 14. previously help examples, mentioned, and ex-

These others plain why “first sale” nec- Lord Coke considered the doctrine essary protect bargaining and and Traffi[c], “Trade why contracting,” they help explain American supra, long applied law has that doctrine. Cf. 538-539. deny Wiley many geo- amici that a Neither nor of its bring graphical interpretation about these “horri- could says Wiley essentially principle. Rather, bles”—at least in Respondent artificially that the list invented. Brief for geo- points adopted a 51-52. It a federal court first out that ago. graphical years interpretation CBS, more than 30 Inc. (ED Supp. Scorpio Distributors, v. 569 F. 49 Inc., Music (CA3 1984) (table). 1983),summarily Pa. aff’d, F. 2d Why problems occurred. Yet, it have not not? adds, these Wiley, purely says problems are and threats Because, reflect also theoretical; reality. are they unlikely post, at 585-586.

We are not been less For one the law has sanguine. thing, in its settled for Circuit, favor. The Second long Wiley’s decision is the a below, purely first Court Appeals adopt Third favored Circuit has geographical interpretation. Int’l, Sebastian F. 2d nongeographical interpretation. 1093. The Ninth Circuit has favored a modified geographi- (but cal un- interpretation textually with a nongeographical sustainable) to diminish corollary designed problem. supra, Denbicare A., U. S. at 532-533. 84 F. 3d 1143. See (cid:127) And other courts and have cast have hesitated adopt, doubt upon, of the validity geographical interpretation. Educ., Pearson Inc. v. Liu, 656 F. Supp. (SDNY 2009); 2d 407 Corp., Red Park, Baron-Franklin v. Taito Inc. No. 88-0156- (ED WL A, 1988), *3 rev’d on other grounds, Va. (CA4 1989). 883 F. 2d 275

For another reliance the “first sale” doctrine thing, upon is those, embedded in the such as book- deeply practices sellers, libraries, retailers, who have re- museums, long lied its are not in upon Museums, for protection. example, the habit with their to check asking counterparts foreign g., e. the heirs of Picasso owners before sending, on tour. Brief for Art Museum Directors 11- Association of 12. That neces- inertia means dramatic change likely counsel, sary institutions, before these instructed their would in the begin to engage complex permission-verifying that a process demand. geographical interpretation And this Court’s of the adoption geographical interpretation could These intolerable con- provide dramatic change. the copyright the absurd result sequences (along can author- owner exercise downstream control even when it sale) led the ized the have understandably first import amicus, Ninth and the dis- Circuit, General as Solicitor sent to textual adopt attempt statute readings post, 27-28; these mitigate harms. Brief for United States they readings defensible, for are at 579-582. But those linguistic jumps require many unprecedented over and too See, insurmountable. view are hurdles that in our other 106(3) reading (acknowledging g.,_post, its of e. at 581 109(a)”). independent “significantly effect of curtails the may proved Finally, far limited so the fact harm has copyright simply far to holders so reflect the reluctance They may rights. geographically decide resale assert based Regardless, differently if in their favor. the law is clarified only practice copyright if unenforced in law that can work create copyright that would It is a law is not a law. sound uncertainty, bring enforcement, and, about selective disrespect widely would breed unenforced, if law itself. peti- problems practical we that the

Thus, believe too ex- serious, are too and amici have described tioner his likely to dismiss them for us about tensive, and too to come ever-growing light im- insignificant—particularly as foreign Bank, The World portance to America. trade GDP) (% (imports in 2011 Imports and Services Goods compared gross product to 11% of U. S. domestic 18% 1980), http://data.worldbank.org/indicator/NE.IMP online (as in Clerk and available Mar. .GNFS.ZS? visited file). copyright-related upshot is that of Court’s case interpretive language, along consequences context, with interpretation geographical argue against strongly canons 109(a). §

Ill important Wiley additional several and the dissent make interpretation. geographical arguments in favor of strongly sup- Quality King they say decision that our First, we interpretation. case asked In that ports geographical its 602(a)(1) provision,” “importation now whether Act’s (without (then permission) 602(a)), barred (labels products) where copyrighted hair care affixed to item the first sale an owner authorized American export products copyrighted of hair care labels made buyer sought the United import States, and where a them back into the United States without the permission. 523 U. S., at 138-139. importation provision prohibit

We held that the did not sending (without products the back into the United States copyright permission). says: That section

“Importation into the United without the States, author- ity copies owner of title, under this of phonorecords acquired of a work that have been out- infringement side the United States is an of the exclu- right copies phonorecords sive to distribute 602(a)(1) (2006 § V) section Supp. 106.” 17 U. S. C. ed., added). (emphasis 602(a) (1994 ed.). §

See also pointed We importation out that this section makes an in- fringement right of the “exclusive to distribute . . . under 109(a)’s § 106.” We noted that “first sale” doctrine limits the § scope of the right. 106 exclusive distribution We took as given products the fact that the had issue at least once been sold. consequently, importation And we held that of 602(a)(1). copyrighted § labels does not violate 523 U. S., at 145. reaching

In this conclusion we endorsed Bobbs-Merrill and its statement that the were not laws “intended right a permit copy- create which would holder of the to fasten, upon notice a book ... a restriction subsequent subject-matter alienation of the parted after the owner had with the title to one who had acquired full dominion S., over it.” U. at 349-350. explained rejected

We why also we the claim that our in- 602(a)(1) terpretation § pointless. would make Those ad- vancing pointed that claim had out the 1976 Act prior antipiracy provision, pro- amendments retained a hibiting importation pirated copies. Quality King, supra, 602(a)(1) they prohibit at 146. Thus, said, must copies, impor- lawfully made for allow the lawfully copies sale, a made as tation those first after 602(a)(1) King’s, Quality holding do, would would leave superfluous, prohibit. much to It become without would any without real to do. work strong argument is a one. do not believe that

We 602(a)(1) Quality King’s interpretation, still Under (without subject importing permission, ex- forbid 602(a)(3)) lawfully ceptions for ex- abroad, (1) foreign publisher operating ample, the licensee as where publisher prints of book overseas an American prior to send them to the sale, seeks but, authorized (2) foreign printer or other manufacturer States; United (if 109(a), purposes g., e. an before not the “owner” sale) goods copyrighted sought to the to send authorized (3) transports copies publisher to a States; “a book owner) (not yet the sends wholesaler” the wholesaler Revision, Law States, to the see them United (4) foreign pt. example); film dis- (giving or a 4, at 211 having distribution, other films for or tributor, leased consignee, sought to send them to licensee, bailee Copyright 8.12[B] g., 2 Nimmer on United e. See, States. (“Section 109(a) provides that the distribution [l][a], at 8-159 respect solely may dis- the initial be exercised prevent position work, restrict not to of a cop- possession of such or other further transfer resale 602(a)(1) ies”). signifi- examples retains show that These significance dissent than the has less cance. We concede it adopts appropriate, also a construc- believes but dissent §109(a)’s §106(3) “significantly effect, curtails” tion of provision post, scope a of that 581, limits the &o greater, degree. similar, or even argument Quality “superfluous” King rejected

In we rejecting that, we it, said But, similar when reasons. gives exclusive American distribution where an author rights publisher distri- and exclusive British to an American rights publisher, “presumably only

button to a British those [copies] by publisher the United States edition ‘lawfully meaning be made under this title’ within the 109(a).” added). (emphasis Wiley S., 523 U. at 148 now argues phrase King Quality opinion that this in the means (under license) published that books abroad fall must outside “lawfully the words made under this title” and that we have consequently already given geographical those words the in- terpretation that it favors. give Quality

We King cannot, however, statement the legal weight Wiley argues. language for which “law- fully Quality King-, made under this title” was not at issue in point fully argued; before us now was then we did not canvass the considerations forth; we have here set we nothing suggest example there said that the assumes a hedged sale”; “first and we there our statement with the ” “presumably. importantly, pure word Most the statement is dictum. It is dictum contained in a rebuttal to counterar- gument. unnecessary respect. And it is dictum even in that having calling Is the Court once written dicta tomato vegetable deny bound to that it is after? a fruit forever contrary,

To the we have written that we are not necessar- ily complete argument bound dicta should more demon- strate Community that the dicta is not correct. Va. Central College (2006) (“[W]e Katz, v. U. S. are not prior point bound to follow our dicta in a case which the fully debated”); now at Humphrey’s issue was not Executor (1935) v. (rejecting, States, 295 U. S. 627-628 may under stare decisis, dicta, “which be followed if suffi- ciently persuasive controlling”). but which And, are not given part Quality King played the bit that our statement Quality King in our decision, we the view of stare believe opinions applies decisis set forth in these to the matter now before us. (to Wiley argue

Second, and the dissent those con- who legislative history) legislative history sider that the Act’s supports interpretation. their But the to historical events place points than a decade which before took more the are and, the inconclusive. best, enactment of Act at 1960 n , representatives During of book, record, the and film Register Copyrights meeting of to industries, with the dis- difficulty copyright complained the cuss revision, about of Copyright dividing Law international markets. Revision Report Register and of the Discussion Comments on of Copyrights Copyright on of the U. the General Revision S. (Comm. 1963) p. Cong., pt. Law, Print Sess., 2, 88th 1st (English “fin[d]” “particular” “way their editions of books (works country”); “published] id., into in a coun- try protection of where there is no sort” are put “shipped “the free of commerce” the into stream ibid, (similar films). States”); respect United concern in then-Register Copyrights, of Kaminstein, Abraham troubling].” examples “very And found these Ibid. the provision Copyright it said Officereleased draft “deals matter distribution the for the foreign copies proper made under United of that were States authority be States, but if sold in United sold that, rights contravention owner who right copies holds United States.” the exclusive sell pt. Id., That without reference to 4, version, at 203. draft imports. simply It forbids said: unauthorized

“Importation into the States of records public purpose of to the of a for the distribution work imported authority without the shall, if such are articles distribute the owner of the exclusive infringement an title, under this constitute records [17 501].” U. S. C. section 35 actionable under Preliminary U. S. Law Draft Revised Id., Cong., pt. 2d Sess., 88th Comments, and Discussions 1964). (Comm. pp. 32-33 Print present expressed discussing In draft, those some For doctrine. ex- concern on “first sale” about its effect League ample, representing Karp, Irwin Authors jobber buys copies lawfully America “If a asked, German publisher, running prob- from a German into the are we not restricting lawfully cop- lem of his of his transfer obtained pt. representa- ies?” Id., 4, at 211. Office The replied: vary tive I another, “This could from one situation guess. guess, example, publisher I should if for that a book transports [i. sell] [i. e., a e., does not to wholesaler yet nonowner], ex- this is not the kind of transaction Ibid, disposition.” (emphasis hausts the to control added). replacing

The Office later draft, withdrew the it with by explicitly referring draft, which, similar was 602(a)(1). provision the that became now law, Office report noted in a that, the new of a draft, under (without copy permission) rights the “would violate exclusive of the U. S. . owner . . where owner country making foreign had authorized the in a only pt. country.” distribution 6, at Id., 150. part says report nothing Still, “first about the §109(a), sale” doctrine, about the five “law- words, or about fully report title.” And its neither nor accompanying question 1960’s us draft answers the before (without Quality King, here. Cf. at five S., 523 U. those import imports words, clause, to via its reference doctrine). the “first sale” 109(a), reading

But to ascertain the best rather than dissecting industry representatives the remarks of concern- ing congressional meetings years 602 at held before the post, give statute was enacted, 568-571, see we would greater weight Report congressional accompanying to the § 109(a), Congress passed written decade later when Report says: new law. That principle

“Section and confirms the restates that, where owner- has transferred owner ship particular phonorecord copy of a work, of a or person phonorecord to whom the is transferred dispose sale, rental, is entitled to other principle, has been which estab- means. Under this present law, and ... lished the court decisions right public copyright distribution owner’s exclusive anyone particu- upon who owns ‘a would have no effect copy phonorecord lawfully lar made under this title’ it to else or to de- and who wishes to transfer someone stroy it. 109(a), scope copy come of section

“To within the phonorecord ‘lawfully made this must have been necessarily though not with the title,’ illegally example, of an resale authorization. For infringement phonorecord ‘pirated’ but the be an phonorecord legally disposition made under the of a compulsory licensing provisions. section 115 would added). (emphasis Rep. 94-1476, not.” H. R. at 79 No. (1975). Rep. pp. 71-72 Accord, 94-473, S. No. history importance of the “first sale”

This reiterates g., Copyright 1964Revision Revision, e. Law See, doctrine. Cong., Sess., 1st Comments, Bill 89th with Discussions (Comm. (“[F]ull 1965) ownership p. pt. of a Print lawfully-made dispose to of it its owner authorizes nongeo- explained, freely”). explains, It as we have “lawfully graphical purposes made under of the words nothing geog- says supra. about II-B, Part And title.” §109(a)’s provi- predecessor raphy. importantly, did Nor, contrary supra, to the that, means sion. See at 534. This history pertain- suggestion, any legislative lack of dissent’s posi- only ing to bolster our to the tends “first salé” doctrine Congress’ create a not intend to tion that did 1976 revision provision. geographical change to that in its drastic revision consequently post, that the believe n. 13. We nongeographi- legislative history, supports the balance, on interpretation. eal Wiley nongeographical

Third, and the dissent claim that a interpretation impossible, perhaps will make it difficult, (and holders) publishers foreign other to divide publisher A domestic markets. We that is so. concede may charge prices find it more different for the difficult to geographic same book in But do different markets. we Wiley, prin- help see how these facts for we can find no basic ciple publishers espe- suggests law that are cially rights. entitled such copy-

The Constitution the nature American describes “secur[ej” right by providing power Congress law with the “[ajuthors” [tjimes” [rjight “for limited “exclusive [wjritings.” their . Founders, . . Art. cl. 8. The I, §8, too, grant discussed the need to an author a to ex- limited competition. Compare clude Thomas Letter from Jefferson 1788), (July Papers to 31, James Madison in 13 of Thomas (J. 1956) Boyd (arguing against 440, Jefferson 442-443 ed. any monopoly), with to Letter from James Madison Thomas (Oct. (J. 1958) 17,1788), Boyd Jefferson id., 16, in 14 at ed. (arguing monopoly production). for a limited But to secure language suggests the Constitution’s nowhere that its limited right right exclusive a to divide markets or should include right charge purchasers a concomitant different different prices say, for book, the same to increase or to maximize gain. any knowledge, to our make Neither, did Founder suggestion. precedent suggesting such We no have found legal preference copyright interpretations for of statutes provide Copyright that would Law for market divisions. Cf. (statement pt. Ringer, Copy- at Revision, Barbara 2, of Office)(division “primarily markets territorial was contract”). private matter contrary, Congress

To enacted a law doctrine) (through the “first sale” limits holders’ ability limitation is to divide domestic And that markets. ordinarily consistent forbid market with antitrust laws that Inc., 46, 49 Ga., v. BRG 498 U. S. divisions. Cf. Palmer (1990) curiam) (“[Ajgreements competitors (per between competition illegal”). are allocate territories to minimize have more not, owners or should should, Whether ordinary power mar- than commercial to divide international Congress do no here is a to decide. We more kets matter for try Congress has taken. than to determine what decision Wiley contend that our decision Fourth, the dissent and unprecedented copyright law into an launches United States ” regime 573-578; Brief Post, of “international exhaustion. nothing Respondent they point indicative 45-46. But congressional also claims that intent in The dissent 1976. adopting opposes it such is clear that the United States now regime, has taken no as amicus but the Solicitor General pressed position In when at oral ar fact, such in this case. gument, consequences stated Solicitor General Wiley’s (perpetual reading downstream con of the statute trol) (restric Kirtsaeng’s reading were “worse” than those of Arg. segmentation). Oral 51. tion of market Tr. of And position Qual dissent’s reliance on the Solicitor General’s ity King agreement in that case with is undermined his 109(a). reading our as Amicus Brief for United States (“When p. Quality King, Curiae in T. No. O. Congress of manufacture . . . make the location wishes to expressly”); protection, relevant ibid, it so Act does unlikely” Congress (calling “distinctly provided manufacturing). have an incentive for overseas apparently regime Moreover, the exhaustion dissent country good” provide in favors would that one of “the sale right property “exhaus[t] not does the intellectual good at Post, control the of that elsewhere.” distribution 109(a) § holding Quality King 574. But that is a de- our fense in “the first sale occurred U. S. courts even when already significantly abroad,” 14, has S., 523 U. at n. principle. eroded such a

1—I > sup- For these we the considerations reasons conclude that porting Kirtsaeng’s interpretation nongeographical “lawfully persua- words are the more made under this title” Appeals judgment reversed, sive. The and the Court of is proceedings the case is remanded for further consistent opinion. ordered.

It is so Alito Kagan, joins, Justice with whom Justice concurring. fully opinion.

I concur in the Neither the text nor Court’s 109(a) § history removing supports of 17 U. first-sale S. C. protection every protected from manufac of a work recognize, tured I abroad. See at 548-551. ante, 530-538, today’s Qual that however, the combination decision ity King Int’l, Inc., 523 Distributors, Inc. v. L’anza Research 602(a)(1)’s (1998), scope U. S. 135 ban on constricts the any prob importation. suggest unauthorized that I write to lems associated with limitation come from our read that 109(a) ing holding Quality King’s, here, but from 602(a)(1). limits played explains, As the Court has the first-sale doctrine integral part an a cen- American law over tury. Straus, v. ante, 538-540; Bobbs-Merrill Co. (1908). prior U. S. 339 doctrine No codification of the arguably application made in even limited its nothing And ante, States. See at 533-534. 109(a)—the history the text or Act 1976’s provision—suggests Congress first-sale to enact meant geographical Wiley proposes, new, which restriction John important deprive at once would consumers of American rights encourage copyright manufacture holders to See ante, abroad. at 530-538, 548-551. Wiley

That said, decision, John Court’s substantially Quality King, when narrows combined with 602(a)(1)’s § importation. Quality ban on unauthorized King importation any copies that held ban does not reach 109(a). § receiving protection first-sale under See S., 523 U. §602(a)(1), notwithstanding at 151-152. So an “owner of particular copy lawfully . .. title” can im port permission. that without the 109(a). § “lawfully holding copies In now that made under this title” include abroad, manufactured we unavoid 602(a)(l)’s ably § scope—indeed, fairly diminish limit it ato applications. esoteric set of at ante, 546-547. 602(a)(1) Congress § shrinking

But if views as a problem, recognize Quality King—not it should our decision today—as culprit. merely we Here, all, after construe §109(a); 109(a) Quality § King holding is the decision that 602(a)(1). opposite way limits Had we come out the in that 602(a)(1) case, would allow a owner to restrict the copies irrespective of the first-sale doctrine.1 That result would enable the owner to in- divide way Wiley Congress ternational markets John claims 602(a)(1). enacting intended when But it would do so with- imposing liability purchase out downstream on those who happen resell the United States to have been manufactured abroad. In words, other outcome target importers alone, unauthorized and not “li- technology companies, braries, used-book dealers, consumer- 1Although Quality King concluded that the statute’s text foreclosed outcome, S., 151-152, see 523 U. at the Solicitor General offered a co 109(a) gent argument contrary. He reasoned that does not limit 602(a)(1) only because the former owners or “dispose” authorizes “sell” copies—not import provision impor them: The Act’s first-sale and its tation ban regulate separate, non-overlapping spheres thus of conduct. Quality King, United States as Amicus Curiae See Brief for T.O. 1996, 96-1470, pp. reading No. 8-10. That remains the Government’s preferred (“[W]e way construing the statute. Arg. See Tr. of Oral think that we would adhere to still our view that section should not ante, be 553; post, 602(a)(1)”); read as a limitation on section also at see (Ginsburg, J., n. 15 dissenting). today

goods Court whom the retailers, with and museums” Congress Assdming rightly Ante, is at 540. concerned. 602(a)(1) segmentation, suspect § I adopted permit market to provision Congress thought would work— that is how copy every manu- removing protection from first-sale (as here), Wiley urges do but us to factured abroad John imports by enabling even to control holder (as King Quality applies now when the first-sale doctrine prevents).2 dissent) Wiley (together asks us

At with the bottom, John 602(a)(1) 109(a) § to its to misconstrue purportedly rightful in order to restore enabling copyright holders function Wiley may segment I think John to markets. international 602(a)(1) designed point do; to have a about was what holding gives Quality King’s pause that the me about scope. But first-sale doctrine ban’s limits today correctly the invitation to save the Court declines 602(a)(1) destroying King by Quality the first-sale from protection every gives manu- owner of (possible) swap mistake factured That one abroad. reading of the statute one, for a much and make our worse Congress only congressional If less reflective of intent. power greater im- thinks restrict owners need 2Indeed, imports irrespective allowing the to restrict copyright owner e., Quality King—would yield a far of the first-sale doctrine—i. reversing adopting John segmentation more sensible than would scheme of market Wiley’s only approach turns argument here. the former That is because place on the intended on their market instead copies; latter rests Wiley difference, prints imagine that John To see the of manufacture. versions all certain York, its in New but wants to distribute textbooks e., do so—i. Quality King, only Wiley in Thailand. John could Without Thailand, anyone prevent produce York, ship books New them to Quality from the United States. But importing them back into reading King, its Wiley even under open that course is not to John 109(a): Kirtsaeng re-importing the books— prevent To like from someone move its Wiley would have to segment and so to the Thai market—John have Congress would why see no printing facilities abroad. I can reason outsourcing on markets power conditioned a to divide country. its manufacturing foreign

portation ready markets, and thus solution is at divide Wiley case, hand—not the one John offers in this but the one rejected Quality King. Court joins, Kennedy with whom Justice Ginsburg, Justice joins except as to and with whom Parts III Justice Scalia dissenting. and V-B-1, interpretation

“In the function statutes, language easily courts It stated. is to construe so as give Congress.” effect to the intent States v. (1940). Trucking Assns., American 310 U. S. Inc., adhering Legislature’s design, Instead of to the the Court today adopts interpretation an Act at odds of the Congress’ copyright against protect aim owners the copies importation low-priced, foreign-made unauthorized of departure copyrighted of their works. The Court’s bold stunning, Congress’ design places from for it is all the more vanguard the United States at the of the movement for copyrights—a the “international exhaustion” of movement stage. steadfastly on the resisted world States has justify insignificance copyright holding To that shrinks to protection importation against foreign- the unauthorized “practical copies, prob made the Court identifies several parade horribles, lems.” at 545. The Court’s Ante, objective largely imaginary. Congress’ in enact however, is 602(a)(1)’s prohibition ing importation 17 U. can S. C. be consequences hy generating honored without the absurd pothesized opinion. in I from the dissent Court’s Court’s affirm the exhaustion,” embrace of and would “international of Appeals. judgment sound of the Court I particular for economic conditions and demand Because goods vary globe, copyright finan- across owners have a copies prices charge their cial incentive to different ability regions. geographic in Their to en- works different gage price if undermined however, such is discrimination,

arbitrageurs permitted low-price import copies are from regions high-price regions. question and sell them in foreign- this case is whether unauthorized copies infringement copyright under U. S. constitutes law. question, provi-

To answer this one must examine three §§106(3), 109(a), sions of Title 602(a)(1). of the U. S. Code: rights” Section 106 sets forth the of a “exclusive copyright right including the “to owner, distribute or phonorecords public by copyrighted of the work to the sale by ownership, or other rental, lease, transfer of or or lend- 106(3). §109(a), ing.” This limited distribution provides: provisions “Notwithstanding which of section 106(3), particular copy phonorecord law- owner of a fully made under this entitled, title ... is without the author- ity dispose owner, to sell or otherwise possession phonorecord.” of that Section codifies the “first sale a doctrine articulated doctrine,” (1908), Bobbs-Merrill Co. v. Straus, 210 U. S. 349-351 price which held that a owner could not control lawfully purchased copies at which retailers of its work. sold recognizes The first sale that a owner doctrine permitted perpetual should not be control over exercise copyrighted the distribution of At some work. point—ordinarily the time of the first commercial sale—the 106(3) § copyright right owner’s exclusive under to control particular copy the distribution of a is and from exhausted, point that forward, the can be resold or otherwise redis- copyright tributed without the owner’s authorization. 602(a)(1)(2006 V)1—last, Supp. Section criti- ed., but most copyright provisions bearing cal, of three on this case— importation anis ban. It reads: 1 602(a) 2008, In Congress § previously renumbered what as was 602(a)(1). § See Prioritizing Organization Resources and for Intellectual Property Act (PROIPA), 105(b)(2), § of 2008 122 Like the Stat. 4259. Court, provision I refer numbering. to the its current

559 “Importation States, into the United without authority under this of title, of the owner of copies phonorecords a work that have been ac- infringement quired is an outside the United States copies phonorecords right the exclusive to distribute 501.” actionable under section 106, under section Quality King Distributors, In Inc. v. L’anza Research (1998), that Int’l, the Court held Inc., 135, 523 U. S. 143-154 importation right under a control to 602(a)(1) § component set forth a of the distribution is 109(a)’s 106(3) § § subject to codification in therefore King Quality that thus held doctrine. first sale importation copies but in the United States infringement sold abroad did not rank as 602(a)(1). § id., at 154 See also Id., at 143-154. (Ginsburg, trip’ jour- concurring) (Quality King “involve[d] ‘round J., ney, question from the United States travel of the Important places again”).2 to the back abroad, to then Quality King holding, had been Court’s at issue appli- prerequisite “‘lawfully [Title 17]’”—a for made under 109(a)). 109(a). (quoting 143, cation at n. Sec- Id., 602(a)(1), apply “copies to that noted, tion Court Kagan’s King Quality suggests that Although Justice concurrence ante, 555, recent, 602(a)(1),” at “holding erred in limits R. Sand & Gravel See John holding given. unanimous must be taken as (2008) (“[S]tare States, decisis respect Co. United v. U. S. force,’ ‘Congress remains free statutory ‘special interpretation to has ” Union, v. McLean Credit Patterson (quoting to alter what we have done.’ (1989))). objective in this case should 491 U. S. 172-173 The Court’s § 602(a)(1)’s ban on unau unduly “eonstrict[ing] scope be to avoid Kagan, J.), ante, while at (opinion of importation,’’ thorized at 554 Quality King’s holding and to the text time remaining same faithful to aim is not difficult provisions. This history Act other Kagan and I II-V, appear Justice achieve. See Parts infra. unauthorized agree to ban on Congress this extent: meant the may have ante, “Wiley (acknowledging have real force. See do”). 602(a)(1) point designed about was what ‘lawfully were Copyright made’ not under the United States Act, country.” but instead, under the Id., law of some other Drawing example during at 147. on an discussed a 1964 public meeting proposed on revisions to the U. S. laws,3 the Court stated: gave [a]

“If the author of work the exclusive United rights—enforceable States distribution under the Act— publisher to the of the United States edition and the rights publisher exclusive British distribution to the presumably only the British [copies] . . . edition, those by publisher of the United edition States ‘lawfully would be made under this title’ within the 109(a). meaning of The first sale doctrine provide publisher of the British edition who decided sell the American market with a defense an ac- (or, tion under for that to an action matter, §106(3), under copies).” if there awas distribution of the Id., at 148. Appeals

As District Court and the concluded, Court 2011); (CA2 see 654 F. 3d App. 210, 221-222 Pet. for Cert. application Quality King analysis 70a-73a, of the to the facts 109(a). preclude any of this case would invocation of Peti Supap Kirtsaeng imported tioner profit and then at a sold copyrighted over 600 printed textbooks outside subsidiary United States respondent the Asian John Wiley (Wiley). App. & Inc. Sons, 29-34. also ante, Court). (opinion 525-527 In the words the used Court Quality King, ‘lawfully these “were made’ not Copyright under the United States but Act, instead, 3See Quality King Distributors, Int'l, Inc., Inc. v. L’anza Research 135, 148, (1998) U. S. n. 20 (quoting Copyright Law 4: Fur Revision Part ther Discussions and Preliminary Comments on U. Draft for Revised S. Law, (H. 88th Cong., Sess., Judiciary 2d R. Comm. Print 1964) (hereinafter 4) (statement Copyright Law Revision Part of Harriet Pilpel)). country.” 147. S., 523 U. at Section the law some other Kirtsaeng’s apply, not unauthor- therefore does infringement importation under ized constitutes 602(a)(1). language deny under I have The Court not that the does Quality King, Wiley prevail. quoted Ante, at from language, this Nevertheless, the dismisses 548. Court Quality King subscribed, the as which all Court Members agree that the dis- at 548. I Ante, ill-considered dictum. not essential was dictum in the sense that it was cussion Quality King, judgment. S., 523 U. at the Court's See (“[W]e today concurring) do not resolve eases J., (Ginsburg, allegedly infringing imports the manufactured in which were abroad.”). disagree conclusion that But I with Court’s for the reasons ex- Instead, this dictum illwas considered. Quality King n consistently plained I would 602(a)(1) below, hold, bar owner to authorizes dictum, importation abroad for sale manufactured of a abroad.

II Congress demonstrates The text Act remedy potent provide copyright intended owners with copy against foreign-made of their recognizes, righted this ante, 525, works. As Court “lawfully phrase meaning turns on the case 109(a). phrase my most In view, title” in referring copy’s sensibly in which a cre read as to instances compliance governed by, with, Title ation is conducted reading is consistent with 17 of the U. S. Code. This interpretation language in other statutes. Court’s similar Piccadilly Dept. Inc., Cafeterias, Florida Revenue v. See (2008) (“under” 1146(a), in 11 U. S. C. 554 U. S. 52-53 exempting Bankruptcy provision asset trans certain Code to”); “pursuant stamp Ardestani v. fers taxes, from means (the (1991) phrase “under section 554” INS, 502 U. 129, 135 S. “subject Equal Act means to” in the Access to Justice (internal “governed by” quotation 5 U. marks C.S. omitted)). dictionary It also definitions of the accords with Dictionary Heritage g., word American See, “under.” e. (5th 2011) (“under” among things, ed. other means, of”). “[s]ubject authority, or control rule, 109(a), Kirtsaeng properly Section no defense read, affords against Wiley’s infringement. Copy- claim of again, Act, it has time and been observed does apply extraterritorially. Dictionary & Co.v. G. (1908) (copyright C. Co., Merriam 208 U. S. statute requiring placed copyright that U. S. be all notices apply copies published of a work did not abroad because beyond U. S. the laws have no “force” borders); Copyright Nimmer, States’ § 4 M. & D. Nimmer (2012) Nimmer) (hereinafter p. (“[C]opyright 17.02, 17-18 any operation.”); laws do have 4 W. not extraterritorial (2012) (hereinafter Patry, Copyright Patry) p. 13:22, 13-66 territorial.”). (“Copyright printing rigorously laws are The foreign-manufactured Wiley’s of therefore was not textbooks governed by Title 17. textbooks thus were not “law- The fully ap- [Title precondition made under the crucial 17],” 109(a). plication apply, of if not And does there n conduct constituted dispute Kirtsaeng is no that 602(a)(1). infringement point departure The Court’s is to mine. similar Accord- “

ing ‘lawfully phrase Court, to the the under this title’ made compliance means made fin with’ fin with’ the accordance or Copyright Act.” Ante, at 530. But Court overlooks the according very that, the cites, ante, dictionaries it the relationship commonly signals subjection, word “under” thing governed regulated where one is another. See 1990) (6th (“under” Dictionary Black’s Law “fre- ed. (internal quently” quota- means “inferior” or “subordinate” (2d omitted)); Dictionary English tion marks ed. Oxford 1989) (“under” among things, “[i]n means, accordance other (some added)). regulative (emphasis power principle)’*, Dictionary International See also Webster’s Third New (1961)(“under” things, among “in ... means, other a condi- regulation, subjection, and “suffer- tion or subordination” by”). Only ing by disre- restriction, restraint, or control garding meaning of “under” can the Court this established Wiley’s foreign-manufactured conclusion arrive at the “lawfully copyright law, were made under” U. S. textbooks though govern It is even that law their creation. did particular speak “law- anomalous, however, to conduct as say inapplicable example, might ful” under an law. For one driving England the road in is “law- on side of the only ful” be so because U. S. law, under U. S. but that would subject. governing nothing say law the The about has driving English English be law, law law demands that done on left side of road.4 the implication logical of the definition word Court’s pi- copy manufactured abroad—even

“under” is that authorization ratical one without country where was and in violation of law 109(a). Any scope such fall created—would copy within “in com- with” or have been made “in accordance pliance man- Act, the sense the U. S. with” (because ufacturing the Act Act did not violate extraterritorially). apply does not accept rightly conclu- such an absurd refuses to

The Court 109(a) only cop- § applying interprets as to sion. Instead, 4 “lawfully” in my gives word position asserts that the The Court Ante, 109(a) That is any, linguistic to do.” at 530-531. “little, if work “lawfully phrase meaning to word in the My reading gives so. each conduct signifies that the title.” word “made” under this Third New copy. issue or of a See Webster’s the creation manufacture is “artificially (1961) (defining Dictionary “made” as 1356 International “lawfully” produced indicates by manufacturing process”). The word 109(a) some apply, complied that the creation must have copy’s to body this title” clarifies Finally, phrase prepositional of law. the “under is—namely, copyright what contained body prescriptions law the of in Title 17 of the U. S. Code. making actually complied

ies whose with Title 17, or would (i. applicable complied have 17been e., with Title 17had Title States). copies had the ante, been made in the United See (“[Section] 109(a)’s apply at 530 doctrine would ‘first sale’ copyrighted long manufacture as as their met works law.”). requirements copyright Congress, of American how express language ever, called for such used when it a coun- 602(a)(2) (b). §§ inquiry terfactual in 17 U. S. C. §602(a)(2) (“Importation exporta into the United States or authority tion States, from the without of the United copies phonorec- owner of of or title, under this making infringement ords, the which an of either constituted copyright, infringe or which would have constituted an applicable, ment fringement in this title had been is an if pho- of the exclusive to distribute (“In 602(b) added)); § (emphasis norecords under section 106.” phonorecords making a case where would infringement have constituted an this title if (em applicable, prohibited.” had been is their added)). phasis Congress engage in Had intended courts to similarly 109(a), hypothetical inquiry Congress presumably language have in that included similar section. States, See Russello v. 464 U. S. (1983) (“‘[WJhere Congress particular language in includes one section of a it in statute but omits another section generally presumed Congress the same Act, it is acts intentionally disparate purposely in ex inclusion or Wong (quoting clusion.’” United States Kim 472 F. 2d Bo, v. (CA5 1972) (per curiam); original)).5 720, brackets Attempting my susceptible reading show criticism, same points now-repealed “manufacturing the Court to the clause,” required “copies consisting preponderantly which of a work literary nondramatic English material... in the to be “manufac language” 1976, 601(a), tured the United or Canada.” Act of States manufacturing Stat. Congress expressly 2588. Because referred provision, contends, “lawfully phrase made under this Court 109(a) Ante, § title” in cannot mean “manufactured in the United States.” at 540. I do the argument sequitur. This is a non not contend that adopt only an unnatural the construction Not does Court 109(a) § “lawfully phrase made under this title.” Con- 602(a)(1) § insignificance. comitantly, to the reduces Court acknowledge, appears ante, 547, see at the As to the Court 602(a)(1) today’s § only independent under decision has effect by per- importations prohibit out carried unauthorized merely possession not the of, own, but do have sons who 109(a)(§ § applies imported copies. 17 U. S. C. See lawfully copy phonorecord particular “owner of added)).6 enough (emphasis If this is made under this title” 602(a)(1)entirely “superfluous,” rendering ante, to avoid give hardly the owner’s 547, it suffices Congress scope Congress to have. used intended it in “lawfully and “manufactured the United phrases under this title” made “lawfully repeat, phrase To I read the made interchangeable. States” are copy’s in which a creation is referring under this title” as to instances with, in Title 17 of the U. S. Code. governed by, compliance and conducted supra, in all “manufactured the United States” See at 561. Not in copies manufactured satisfy example, piratical will For this standard. are not copyright owner’s authorization the United States without the “lawfully phrase manu- “lawfully Nor would 17].” made under [Title “lawfully for be ah substitute factured the United States” exact yet may be lawful under Title making copy under title.” The of a Consider, example, copy provision still violate some other of law. paid by workers who are authorization made with the “lawfully made [Title be under minimum would wage. less than any provision violate of that would not the sense that its creation 17]” unlawful due to title, manufacturing nonetheless be copy’s but minimum-wage laws. violation of the 602(a)(1) an played additional enacted originally When was importers piratical against of action role—providing private cause however, S., Congress In Quality King, at 146. goods. See 523 U. 602(a)(2), §602 action in which provide for such a cause of amended into the United States ... prohibits “[importation the unauthorized infringe an phonorecords, making of which either constituted infringement an copyright, have constituted ment of or which would PROIPA, 105(b)(3), if applicable.” [Title had been 17] only Thus, interpretation, conduct Stat. 4259-4260. Court’s 602(a)(1) 602(a)(2) im by § nonowner’s unauthorized reached is a but portation copy. a nonpiratical § language 602(a)(1);

broad in it did so to achieve broad objective. Congress simply provide copy- Had intended right remedy against consignees, lessees, licensees, larcenous copyright-protected goods, and bailees of films and other see likely language ante, at 534-635, 547,it would have used tai- § purpose. lored to that narrow 8.12[B][6][c], See Nimmer (“It may poten- n. 432 8-184.31, be wondered whether ... [against tial like] causes of action licensees and the are more theoretical.”). than ante, also at 555 concur- J., (Kagan, (the ring) 602(a)(1) § fairly Court’s decision limits “to a eso- applications”).7 teric set of

The Court’s decision also overwhelms C. U. S. §602(a)(3)’s §602(a)(l)’s exceptions importation prohibi- (3d § Copyright 7.6.1.2(a), tion. 2 p. P. Goldstein, ed. 7:141 2012) (hereinafter Goldstein).8 exceptions permit the Those 7Notably, § the Court ignores history 602(a)(1), which reveals that of primary purpose remedy of the prescription provide was not against rogue licensees, bailees, consignees, against and whom owners could frequently assert breach-of-contract claims even the ab 602(a)(1). § 602(a)(1) sence of Instead, primary purpose was to reach third-party importers, enterprising Kirtsaeng, against like actors whom copyright owners could not assert contract claims due to lack of privity. III, See Part infra. 602(a)(3) Section provides: 602(a)] e., “This [i. subsection not apply does to— “(A) importation exportation or copies phonoreeords or

authority or for the use of the Government of the United States or of any State political or State, subdivision of a including copies but not or phonoreeords schools, for use copies any or im- audiovisual work ported purposes for use; other than archival “(B) importation exportation, or for private importer use of the or exporter and not distribution, any for by person respect with to more no copy than phonorecord any one or time, any any by one work at one or person arriving from departing outside the United States or from the United States with respect copies phonoreeords forming part such person’s personal baggage; or “(C) importation by operated scholarly, or for an organization for educa- tional, religious purposes private respect not for to no gain, more than one solely of an work its purposes, audiovisual archival owner’s authori- without scholarly, personal, governmental, edu- certain zation for 602(a)(3). purposes. religious 17 U. S. C. cational, exceptions imported “will often law- be under these .Copies purchased through fully gray goods' normal market §7.6.1.2(a),at 7:141.9 2 Goldstein market channels abroad.” can event such if, holds, But as Court 602(a)(3)’s 109(a), al- imported work has be ready virtue of Congress example, of had conceived done. been For §109(a)’s earthly sweep what reason does, the Court as 602(a)(3)(C), § Congress provide, did in as would there be to copies” may library import of a more than five “no that a purposes”? “lending archival or for its nonaudiovisual work 109(a) 602(a), §§ reading plausible and of The far more 109(a) § apply copies Congress to intended then, is copies manufactured and States, not to made in the United importation reading the first sale That of sold abroad. 602(a)(3)’s meaning- § exceptions provisions real, leaves 31 Andrews, 19, 534 U. S. ful Inc. v. work to do. See TRW (2001) (“It statutory principle construction of ais cardinal ought, upon that, so construed whole, to be that a statute prevented, shall be sentence, or word clause, if it can be no (internal quotation superfluous, insignificant.” marks void, or omitted)). by the ex- range covered In the of circumstances 602(a)(3) pur- § ceptions, entities who frees individuals they requirement foreign-made copies from the abroad chase any other work for its copies phonorecords or and no more than five copies such importation of unless the library purposes, or archival lending systematic reproduction consisting of activity of an phonorecords part is provi- of the distribution, in violation engaged by organization such 108(g)(2).” of section sions 9 “imported outside that is good to a good” market refers “gray The term by the negotiated contractually been channels that have distribution Rothnie, Imports, Forsyth Parallel & owner.” property intellectual Competition Pol Rights and Property The Between Intellectual Interface 2007). commonly called (S. goods are also icy Such 429 Anderman ed. Ibid. “parallel imports.” 602(a)(1) copy- obtaining

would otherwise face under permission import into the United States.10

Ill 602(a)(1) history The I draw reinforces conclusion 109(a) provisions: from the text of the relevant does 602(a)(1) apply manufactured abroad. Section was part Copyright enacted as Act 90 Stat. 2589- product lengthy 2590. That Act was the aof revision effort Copyright overseen the U. Music, S. See Mills Office. (1985). Snyder, v. 469 U. Inc. S. 159-160 In initial its report on revisions, recommended Office publishers “suggested [then-existing] noted that had that the import piratical copies ban on should be extended to bar the foreign “agree- edition^]” of . . . in violation of reading by §104, Court asserts that its is bolstered which extends the “protection[s]” variety a wide of Title foreign ante, works. See af “protection 532. The under this title” by 104,however, forded merely infringing protection against conduct States, within the only place applies. Title 17 where (hereinafter Patry, (2012) Copyright W. §13:44.10,pp. 13-129 13-128 to Patry). Thus, 109(a) my § reading phrase of the “under this title” in is Furthermore, consistent with Congress’ § § phrase use of that in 104. describes which works are copyright protection entitled to under U. S. law. disputes But no one Wiley’s copyrights in the works issue are case valid. only question The Kirtsaeng’s importation is whether of copies of those infringed Wiley’s works copyrights. copy It is basic to right law that “[o]wnership copyright... ownership of a distinct from is any object of material 202. which the work is embodied.” 17 U. S. C. See also 101 (‘“Copies’ objects, phonorecords, are material other than a by which work is any fixed developed, method now known later from which the work can be perceived, reproduced, or otherwise communi cated, device.”). directly either or with a the aid of machine or Given the distinction copies, inappo- law draws between works and 104is (“There question the Patry site to here presented. 13:44.10, at 13-129 connection, is no linguistically substantively, 104and Seetion[s] between 109: Section 104 eligibility intangible deals with national for the work of authorship; tangible, Section physical deals with the embodiment of ”). work, the ‘copy.’ the copyrighted markets for to divide ments international Report Register Copyright the Law Revision: of works.” Copyright Copyrights of the General Revision the U. S. on (H. Judiciary Cong., R. Comm. Law, Sess., 87th 1st Print .126 1961) Revision). (hereinafter Copy- Copyright Law (“The right importation 1947, 106, Act of 61 Stat. into any piratical copies the work United States ... of copyrighted prohibited.”). in the ... United States against Copyright originally an such ex- Office recommended reasoning that enforcement ban, tension of the left contract law. territorial restrictions was best Copyright Law Revision 126.

Publishing-industry argued strenuously representatives against initially Copyright position taken Office. Copyright report, panel At a 1962 discussion on the Office’s example, Manges Publish- for of the American Book Horace ers Council stated: publisher contract with a U. enters into a

“When S. book rights publisher acquire for exclusive S. British U. English particular edition book, finds that he often country. way particular finds its into this ... book say, for a lawsuit breach Now it’s all ‘Commence expensive, burdensome, and, of contract.’ But this is Copyright part, Law Revi- most ineffective.” Report 2: Discussion and Comments on sion Part Register Copyrights the General Revision of on (H. Cong., R. Sess., Law, U. 88th 1st S. 1963). Judiciary Print Comm.

Sidney representing Records, London elabo- Diamond, many Manges’ situations,” rated “There are on statement. necessarily question explained, he “in which it is may remedy—in inadequacy be of a sense contract particular problem.” quick enough to solve difficult or publishers “Very frequently,” Id., stated, Diamond at 213. produced copies [a] “run work... into a situation where ... 570 foreign country... may shipped [to States]

in a be the United any violating copyright proprie- without contract of the U. S. pub- tor.” Ibid. To if illustrate, noted, Diamond a “British copy] [sells ship[s] lisher a who in turn an individual over” to the United States, the individual’s conduct would [any] not “violate contract between the British and publisher.” possibility American Ibid. In a “no case, such remedy” contract The facts of would exist. Ibid. Kirtsaeng’s copies example, case fit save that the Diamond’s printed initially at issue here were in Asia rather sold than Great Britain. considering report, Copy-

After comments on its right “prepared provisions preliminary Office for draft of Copyright a new statute.” Law Revision Part 3: Preliminary Copyright Draft for Revised U. S. Law and Dis- Cong., cussions and Draft, Sess., Comments on the 88th 2d v (H. 1964). Judiciary R. Comm. Print Section of the draft by publishing-industry statute addressed the concerns raised representatives. particular, provided: In “Importation into the United States of or records purpose public of work of distribution to the imported authority shall, if such articles are without the the owner of the exclusive to distribute infringement or records title, under this constitute an [1 e., actionable section section providing private for a in- cause of action for fringement].” Id., at 32-33. panel

In a regarding discussion the draft Abe statute, Copyright Goldman, Office’s left no Counsel, General 44(a). meaning represented, doubt about the It he ex- plained, “shif[t]” report, from Office’s against using copyright which had recommended law to facil- publishers’ segment itate efforts to international markets. Copyright Law Revision Part 4: Further Discussions and Preliminary Copyright on Draft for Revised U. S. Comments (H. Judiciary Cong., Sess., 2d R. Comm. Print Law, 88th 1964). 44(a), copyright stated, Goldman would allow Section against infringement bring importers owners to of actions “foreign copies proper authority.” made under were (Goldman agreed id., Ibid. See also at 205-206 with a 44(a) § speaker’s “enlarge[d]” copyright U. comment that S. by extending import prohibitions legally law “to works countries).11 produced Europe” foreign in and other step process The next in revision was the Congress July introduction bill on 20,1964. of draft See Copyright Law Revision Part 5:1964 Revision Bill with Dis- (H. Cong., Comments, Sess., cussions and ciary 89th 1st R. Judi- 1965). public Print Comm. After another round of February comments, a introduced on 4,1965. revised bill was Copyright Supplementary Report Law Part 6: Revision Register Copyrights of on the General Revision of Cong., Copyright the U. Law: 1965 89th Bill, S. Revision (H. 1965) (herein- Judiciary 1st v Print Sess., R. Comm. 6). closely Copyright language after Part In Law Revision statutory resembling Congress, text later enacted 602(a) § provided: of 1965bill

“Importation author- States, into the without the ity title, of the owner of under this phonorecords purpose of a work for the of distribution public infringement to the of the exclusive is an observes, 549-550, ante, Karp As the of the Authors Court Irwin 44(a) § League panel ran America stated at the 1964 discussion that, very concept you’ve counter to “the law once sold basic legally, you Law Revision Copyright can’t restrict its resale.” argument Part at 212. if ... an “presenting When asked he was 44(a), against” however, “neutral on Karp responded th[e] that he was Id,., provision.” at 211. There is thus little reason believe 602(a) 44(a) changes wording were before its codification restricting response Karp’s problem [the] made in of “the discussion Ibid. lawfully [foreign] copies.” transfer obtained of.... phonorecords

to distribute section at 292.12 Id., actionable under section 501.” implies “explicift]refer[enee] The Court that the 1965bill’s departure to 106” showed marked from Copy prior Ante, draft. at 550. Office’s way. In its sum Office, did not it that however, see mary provisions, Copyright Office ob of the 1965 bill’s the 44(a) § the served of bill, of the 1965 like Copyright supra, prior see at 571 and this draft, Office’s page, infringement permitted bring copyright ac owners against importers in cases the tions “where unauthorized copyright imported] making [the owner the of had authorized copies only foreign country coun in a for distribution try.” Copyright Part at 149-150. See also Law Revision (Under 602(a) “[a]n bill, unauthor id., xxvi of the 1965 importer damages enjoined ized both could be and sued importing copies phonorecords were where the or he was (that ‘piratical’ making have consti is, where their infringement copyright tuted an if the law could have U. S. ‘lawful.’”). applied), making been and where their was 602(a)(1) finally The enacted into law current text of was §602(a), Copyright 2589- 1976. See Act of 90 Stat. Reports the 2590. The on House and Senate Committee Congress understood, 1976 Act did the demonstrate that as Copyright Reports just that text meant. Both Office, what state: language from the bill There is but one difference between 602(a)(1): In corresponding in the current version of language version, phrase purpose current of distribution to “for

public” acquired outside the is omitted and the “that have been phrase differences are no material appears States” its stead. There quoted corresponding bill and the language between the from the 1965 Part 6: language Copyright Law Revision contained in the 1964 bill. See on the Revi Supplementary Report Register Copyrights General Bill, Sess., Cong., sion of 89th 1st Copyright the U. S. Law: 1965 Revision 1965). (H. Judiciary 292-293 R. Print Comm. separate impor- [deals] situations: with two “Section (that phonorec- copies ‘piratical’ is, articles tation of authorization of ords made without copies pho- owner), importation and unauthorized general ap- lawfully made. that were norecords importa- proach to make unauthorized section 602is permit infringement cases, in both but tion an act of importation only prohibit the Bureau of Customs (1975) p. Rep. ‘piratical’ 94-473, No. articles.” S. added). Rep. (emphasis 94-1476, H. No. R. also (1976)(same). p. 169 history legislative Act of 1976

In sum, the contrary, hardly To the Ante, at 549. “inconclusive.” conveys: Congress plain the Act what the text of confirms 602(a)(1) provide with a rem- owners intended foreign-made edy against the unauthorized were made and if those works, of their even authorization.13 sold with the abroad

I V my position holding, consistent with is Unlike the Court’s in international-trade has taken the stance United States highly negotiations. contentious on the This ease bears The issue arises exhaustion. trade issue of interterritorial in property nature, see is territorial law because intellectual prop- supra, of intellectual creators 562, which means rights property erty “may parallel” intellectual hold set of Chiappetta, The Desir- nations. the laws of different under ability Disagree: Agreeing TRIPS, Interna- WTO, To Things, 21 Mich. J. a Few Other tional IPR Exhaustion and in position the House support for its purports to find The Court Ante, at 550-551. Copyright Act. Reports on the 1976 Senate Committee history, however, legislative anything in the Act’s up with It fails to come “lawfully made this Congress the words showing that understood copies. foreign-made encompass title” (2000)(hereinafter Int’l Chiappetta). L. 333, 340-341 There is no international consensus on whether the sale one country good incorporating protected prop- of a intellectual erty property right exhausts the intellectual owner’s to con- good trol the distribution of that elsewhere. Indeed, Organization, members “agreeing of the World Trade to dis- agree,”14 provided Agreement in Article 6 of the on Trade- Aspects (TRIPS), Property Rights Related of Intellectual Apr. “nothing 15, 33 I. L. M. 1197, 1200, in this Agreement shall be used to address issue of . . . exhaus- Chiappetta tion.” (observing in- exhaustion of property rights “hotly during tellectual was debated” negotiations negotia- [the TRIPS and that Article 6 “reflects tors’] inability agree” single ultimate on a international standard). language appears Similar in other treaties to party. which the United States is a See World Intellectual (WIPO) Property Organization Copyright Treaty, 6(2), Art. Treaty Dec. p. (“Nothing 20, 1996, S. Doc. 105-17, No. Treaty Contracting shall affect the freedom of Parties any, determine the conditions, if under which the exhaus- right [to tion of the copy- control distribution righted applies work] after the first sale or other transfer of ownership original or a work with the author.”); authorization of the WIPO Performances and Pho- nograms Treaty, 8(2), Treaty Art. Dec. Doc. 1996, S. p. (containing No. language nearly 105-17, identical to Ar- 6(2) ticle Copyright Treaty). of the WIPO In agreement the absence of at the level, international country each has been left to choose for itself the exhaus- tion option framework it will follow. One a national- regime, exhaustion under which a 14 Chiappetta, Desirability The Agreeing WTO, Disagree: To The TRIPS, International IPR Things, Exhaustion and Few Other 21 Mich. (2000) (hereinafter J. 333, (internal Int’l L. Chiappetta) quotation omitted). marks only copy particular is exhausted of a distribution control Forsyth country sold. See & the in which within the Imports, Between Intel- in The Interface Rothnie, Parallel (S. Policy Property Rights Competition 429, lectual Rothnie). (hereinafter 2007) Forsyth An- & Anderman ed. option exhaustion, under is a rule of international other particular copy any- of a distribution which authorized copyright owner’s distribu- where in the world exhausts copy. everywhere respect right ibid. that See tion approach European adopted the intermediate The has Union copy any- regional sale of a which the exhaustion, European Area exhausts Economic where within the region. throughout copyright owner’s distribution 602(a)(1), my view, in ties 445. id., See Section framework. United a national-exhaustion States to solidly places in the United States decision, contrast, Court’s camp. in the international-exhaustion arguments Strong of, favor made both have been Chiappetta opposition See exhaustion. to, international (“[rjeasonable points making can, and people valid desirability conflicting regarding the do, reach conclusions” exhaustion). sub- exhaustion International international competition jects goods from lower copyright-protected priced imports benefits consumers. extent, and, to profit a national- Correspondingly, copyright from owners monetary regime, enlarges incen- which also exhaustion Forsyth & copyrightable works. tive new to create against (surveying arguments for and inter- Rothnie 432-437 exhaustion). national policy

Weighing competing our Government concerns, adoption widespread reached the conclusion inconsistent be framework would international-exhaustion long-term States. economic interests with the Quality Amicus Curiae See Brief for United States as (hereinafter Quality pp. King, 22-26 96-1470, No. O. T. 576 Brief).15

King Accordingly, has the States stead- fastly negotiations position “taken trade the in international right that domestic . .. have owners should the prevent importation the work unauthorized their sold Id., abroad.” at has 22. The United States “advanced position negotiations,” including this in multilateral trade negotiations Agreement. the Id., on at See 24. TRIPS History Agreement: Drafting also D. Gervais, The TRIPS 2008). (3d Analysis p. and §2.63, It has taken 199 also ed. adoption trading partners’ legislation a dim view of our incorporating elements of international exhaustion. Clapperton Locking Locking Out Corones, Customers, & in Competitors: Anti-Circumvention in Australia Laws Technology High Competition Their Potential Effect in on (2006) (United Markets, 30 657, U. Melbourne L. Rev. expressed regarding States concern international-exhaustion legislation Australia); Comment, The Montén, Inconsist- ency Counterproductive Between Section 301 and TRIPS: Respect With Future of International Protection Property Rights? Marq. Property Intellectual Intellectual 15The my position Court states that Solicitor “reliance on the General’s in Quality King [the] in that agreement is undermined his case with 109(a)” Ante, reading §of adopts. today Court 553. case, United States’ Quality King how principal concern in and this both ever, has im protect “right prevent been to parallel owners’ ports.” Brief Quality King, T. Amicus Curiae for United as O. States (hereinafter Brief). King 96-1470, p. Quality No. Brief See also as Amicus Curiae interpre United States (arguing Kirtsaeng’s § 109(a), tation of which the adopts, “subver[t] Court Section 602(a)(l)’s ban on Quality King, In Solic unauthorized importation”). 109(a)’s itor urged General this first Court to hold that codification of the sale doctrine does not limit the to control set forth 602(a). King Quality Quality King rejected Brief 7-30. After contention, position, now en United States its and it reconsidered interpretation “lawfully dorses the phrase 6-7, title” I would Amicus Curiae as adopt. Brief for United States 13-14. (same (2005) respect New

L. Rev. 417-418 Taiwan). Zealand and history Copyright Act were if text

Even question pre- ambiguous this case to the on the answer supra16—I they II—III, Parts not, are 'see sents—which position holding firm with the out of accord would resist in on exhaustion international the United States has taken acknowledge, negotiations. King, Quality I discounted the inconsistency potential with Government’s concerns about obligations certain trade bilateral States Quality agreements. at 153-154. See also S., See 523 U. King (listing agreements). That decision, 22-24 Brief only products copyright-protected however, dealt with 154 S., 523 at U. United States. See (Ginsburg, J., question King open concurring). Quality whether left copyrights im- control over the owners of could retain U. S. portation point and sold abroad—a manufactured Quality (arguing that ante, the Court at 553 obscures, see King “significantly principle the national-exhaustion eroded” embraces). 602(a)(1) today my The Court an- that, in view, resounding doing question “no,” so, swers with credibility undermining on the risks States’ the United urged trading stage. has our world While the Government partners adopting international-exhaustion to refrain from regimes within their borders consumers that could benefit adversely property impact but on intellectual would producers embraces an the Court States, in the United U. S. con- rule that could benefit international-exhaustion foreign disadvantage likely holders of sumers U. S. but 16Congress exhaustion hardly provide for international capacity lacks in Indeed, Congress expressly provided when intent. has is its chips em of semiconductor ternational exhaustion the narrow context 906(b). §§905(2), bodying protected “mask C. works.” See 17 U. S. (2012) §8A.06[E], p. 8A-37 Nimmer, Copyright M. & D. also Nimmer 906(b)] (hereinafter Nimmer) (“[T]he expressly under [§ first sale doctrine importation.”). immunizes unauthorized

copyrights. scarcely This the United dissonance enhances partner States’ “role as a in multilateral endeavors.” trusted Seguros y Reasequros, Sky Reefer, Vimar A. v. M/V S. (1995). U. S.

V justifications I turn now to the for a decision diffi- Court’s history. cult reconcile text and Act’s A holding The Court asserts that its “is with anti- consistent ordinarily trust laws that forbid market at Ante, divisions.” referring (again 552-553. See ante, also antitrust principles). 602(a)(1), I Section read as do and as however, simply does, Government facilitates owners’ impose cop- efforts to “vertical on restraints” distributors (“Parallel Forsyth ies of their works. See & Rothnie 435 importation restrictions and enable manufacturers distribu- through tors to erect ‘vertical in the restraints’ market ex- agreements.”). Leegin generally clusive distribution See Creative Products, PSKS, Leather Inc. 551 Inc., v. U. S. 877 (2007) restraints). (discussing vertical have that We held per illegal vertical restraints not 1 of the Sher- are se under man 15 Act, U. S. can 1, C. because such “restraints have procompetitive at 551 U. S., effects.” 881-882.17 17 Despite way suggestion contrary, Court’s in no this case per implicates se antitrust horizontal prohibition against ‘“[a]gree- ments between competitors competi to minimize to allocate territories Ante, Ga., Inc., BRG tion.’” at 553 (quoting Palmer v. 498 U. S. curiam)). (1990) (per Wiley authority requesting to enter not into agreements would, collusive publishers other that textbook for exam ple, Wiley make supplier subjects particular exclusive of textbooks on particular Instead, within Wiley geographic regions. asserts no more prerogative than the vertical restraints on the distribution of its impose own textbooks. Hovenkamp, Competitive Post-Sale Restraints Harm: Survey The First Sale Doctrine in Y. U. Ann. Perspective, N. (2011) (“vertical Am. L. way [on] include “limits restraints” product distributed”). seller’s own can be

B following holding many from a sees “horribles” Court 109(a) “lawfully phrase title” does made that the (internal copies. encompass foreign-made Ante, at 543 109(a) omitted). foreign- quotation If excluded marks copies, owners could fears, then Court oyer perpetual the downstream distribution control exercise Wiley’s ruling public display copies. favor, A of such put used-book asserts, libraries, the Court would shutter prevent cripple business, museums, dealers out art goods, range from cars consumer the resale of wide ante, at 555 See also Ante, to calculators. at 540-543. “imposing concurring) (expressing about concern J., (Kagan, liability purchase and resell in the downstream on who those happen to manufactured have been States abroad”). precedent, bar- however, erect law and anticipated riers to the horribles.18 foreign-made copies

Recognizing the am- fall outside they are free the first bit of not mean forever supra, observed, 558, the sale As earlier see doctrine. initially stated in its 1908Bobbs-Merrill Court that doctrine statutory provision expressly time, decision. At that no law Instead, codified the first sale doctrine. liberty merely provided had “the sole owners copying, completing, printing, reprinting, publishing, exe- observes, ante, stated at oral 553, the United As the Court at States opinion in argument predicted the Court’s tyfSes the of “horribles” would, they of market pass, if than the frustration came to be “worse 109(a). segmentation” interpretation that will result from the Court’s States, however, recognized that Tr. of Oral Arg. 51. The United the explained, purported a false the United States dilemma is one. As to giving meaningful effect Court’s while still horribles can be avoided 602(a)(l)’s Ibid. importation. ban on unauthorized cuting, finishing, vending” Copyright their Act works. 1, 26 Stat. 1107. scope

In Bobbs-Merrill, the the Court addressed of the statutory right right, granting “ven[d].” In the Congress permit copyright held, Court not intend to did upon subsequent owners “to fasten ... a restriction the subject-matter copyright alienation of the the after owner parted acquired had with the one full title to who had domin- given satisfactory price ion over it and had for it.” 210 “[0]ne copyrighted U. S., at 349-350. who has sold a article explained, parted . . . without restriction,” the Court “has right with all sale Id., control the of it.” 350. Thus, purchaser “[t]he authority of a once of the book, sold copyright, may again, although owner of the sell he could publish a new it.” edition of Ibid. logic foreign- Under the the of a Bobbs-Merrill, sale copy manufactured in the carried out with the United States copyright owner’s authorization would exhaust the copy. copy to “vend” that could thence- resold, forth be lent out, or otherwise without redistributed Although further authorization the from owner. 106(3) “vend,” uses word rather than “distribute” there Congress is no reason think word intended the “distrib- meaning ute” different to bear a from the construction the gave Court to the word “vend” Bobbs-Merrill. ibid. (emphasizing “purely question that the before the Court was construction”).19 statutory [one] of accord Thus, foreign- of a Bobbs-Merrill, first authorized distribution in the exhausts the own- States 19 appears It Act of the word “vend” Copyright 1976 omitted “redundan[cy]” present and introduced the word to avoid the “distribute” pre-1976 Register Report law. Copyright Law Revision: Law, Copyrights on General Revision of S'. 87th U. 1961) (H. Sess., Cong., Judiciary (noting that 1st R. Comm. Print' rights “publish” Copyright Act exclusive “vend” works under “redundant”).' 1947, 1(a), 652-653, 61 Stat. were

581 106(3). § such an right After author- under er’s distribution may library aor used-book lend, dealer distribution, a ized copy seeking copy- foreign-made may without the the resell, permission. 541-542. right ante, at Cf. owner’s Kirtsaeng, imported example, Wiley, had rather-than if For foreign-made and then sold States into the United text- 106(3) § Wiley’s right distribution case, in this at books issue of Bobbs- the rationale exhausted under would have been would thus be free to textbooks Merrill. Purchasers of the gaining they dispose without first wished of the books as Wiley. license from acknowledged, signifi- reasoning, it must be

This line of 109(a). § cantly independent I If, as effect curtails 106(3) § incorporates the in “distribute” maintain, the term 109(a)’s by Bobbs-Merrill, then virtue of first sale doctrine regulatory to the re- little adds codification of doctrine statutory 109(a), gime.20 serve as a however, does Section 20 limiting on as a construction My position Bobbs-Merrill lives 109(a) 106(3) leave with no work to do. right does distribution in were Bobbs-Merrill that the books at issue There can be little doubt Bobbs-Merrill Co. v. See sold in the United States. published and first (the (CC 1905) claiming copyright publisher Straus, 155, 157 SDNY 139 F. principal had of incorporated and its infringement in Bobbs-Merrill was § 3, Indiana). 1891, 26 1107-1108 Stat. Act of Copyright fice in also See owner, by even (generally prohibiting importation, 13:40, books); Patry § at 13- copyrighted foreign-manufactured (under foreign and by of books both “copies Act of Copyright States”). ante, cf. at But the United printed had to be in U. S. authors general the 1891 Aet’s acknowledging (asserting, without copyrighted foreign-made prohibition against . . “geographical distinctions . books, any unable to find that the Court is Bobbs-Merrill”). only Bobbs-Merrill Thus, under exhaustion occurs with the the United States when a is distributed within 109(a), But under abroad. permission, not when it is distributed owner’s of a U. S. distribution authorized interpreted Quality King, as country, foreign exhausts occurring in a copy, even distribution 106(3). S., U. distribution a circumstance for exhaustion provides n. 14. Section therefore not reached Bobbs-Merrill. against deviating

bulwark way courts from Bobbs-Merrill in a copyright increases owners’ control over down- legislative history stream distribution, that is indicates 109(a) precisely § Congress play. the role intended Con- gress § Copy- first codified in 41 the first sale doctrine of the right Act of 1909,35 Stat. 1084.21 It did the House Com- so, Report explains, mittee on the 1909 Act “in order to make [Congress enlarging] had] . . . [of] clear in no intention way any given be construction to to the word ‘vend.’” (1909). Rep. Cong, H. R. 2222, No. 60th Sess., 2d Accord- ing §41 Report, to the Committee was “not intended to change [existing any way.” position law] in Ibid. The I explained expression have stated and with this accords §41 congressional enacting successors, intent. In and its I Congress “change existing hold, did law,” ... ibid., (and by stripping the word “vend” thus its substitute “dis- tribute”) limiting imposed of the construction in Bobbs- Merrill. reading

In event, the I Act to which 109(a) § Congress’ enacting subscribe honors in aim while the §602(a)(l)’s reading severely Court’s of the Act diminishes supra, My position way tugs role. See at 566-568. in no against 109(a)—i. principle underlying e., that certain conduct owner the owner’s exhausts 106(3) right. distribution Court, contrast, in fails give meaningful Congress’ effect intent in manifest 602(a)(1) grant owners to control foreign-made copies of their works. 21 Section 41 of the provided: 1909 Act Act shall be “[N]othing forbid, deemed to prevent, any copy copy or restrict the transfer of of a righted work the possession lawfully of which has been obtained.” Stat. 1084. §27 This language repeated change was without material of the Copyright supra, above, Act 61 Stat. 660. As noted see 17 U. S. C. sets out the current codification of the first sale doctrine. further statutory prescriptions provide protection

Other imagined by the absurd Court. consequences against 602(a)(3)(C).- “an organization oper- For example, permits educational, ated for to im- scholarly, religious purposes” authorization, without to five up port, of a nonaudiovisual foreign-made work—notably, book—for archival But cf. “library lending purposes.” ante, at 541 the Second affirming Circuit’s (suggesting decision libraries from might lending foreign-made prevent books).22 that amici

The Court art museums representing also notes fear that a favor would museums Wiley’s prevent ruling Ante, from works of art created abroad. at 543 displaying al.). Museum et Brief for of Art Directors (citing Association amici observe that museum’s These to works right display 109(c). § of art often on 17 C. See Brief for U. S. depends et Association of Art Directors al. 11-13.23 That Museum exclu- addresses exhaustion of owner’s provision copyright 106(5) § sive under the owner’s work. display to publicly § Because 109(c), 109(a), “lawfully § like to only applies amici under that a in Wiley’s made this contend title,” ruling 22 group amici representing expresses A of the concern that libraries 602(a)(3)(C) authorizing only import the might § lower courts as interpret ing, but nonaudiovisual works. lending, foreign-made not the of of 20. Library See Brief for et al. The United States American Association best) (and 602(a)(3)(C) maintains, fairly however, I “is agree, importation, all implicitly read as addition to authorizing lending, United States as Amicus works other than audiovisual works.” Brief for 30, n. 6. Curiae 109(c) “Notwithstanding provisions the provides: Title 17 U. S. C. 106(5), lawfully this particular copy section the owner of a title, entitled, by owner, without the any person or authorized such authority owner, copy publicly, either di display time, rectly image at a to viewers by projection than one of no more present place at is located.” where the 109(c) prevent invoking

favor with from museums foreign-made respect to art. at 11-13.24 Id., works of 109(c) Limiting does not however, to U. works, S.-made lawfully displaying bar art museums from works made other countries. seek the can, course, Museums permission display Furthermore, a work. may carry it an sale of a to a work art U. S. museum Patry implied publicly display work. license (“[C]ourts potential avail- §5:131, at have noted the 5-280 ability implied licensfe] of an when circum- nonexclusive parties that the stances . . . that the intended demonstrate Displaying specific purpose.”). work would be used for a qualify part might art also work of as of a museum exhibition as a “fair Bouchat v. Balti- use” under 17 U. S. C. 107. Cf. (CA4 Partnership, more Ravens Ltd. 619 F. 3d 313-316 2010) (display copyrighted logo exhibition in museum-like use”). constituted “fair foreign-made con- Court worries about resale of goods programs “contain[ing] copyrightable

sumer software packaging.” example, ob- For the Court Ante, 542. might programmed serves that a car with diverse forms be copyrights might indi- software, the be owned which the car. viduals or entities other than the manufacturer of permission Ibid. Must a owner, asks, car the Court obtain reselling from all of these before various owners strays Although question her car? Ibid. far from presented by parties, princi- one in this case and briefed (to ples express implied of fair use the extent and license exist) likely permit the car to be resold licenses do not would without owners’ authorization.25 24 a 109(c), original § of “copy,” appears applies The word as it in to the to “in- “copies” of term work art because the Act defines the § 101. object... first fixed.” material in which the work is clud[e] 25 a U. S. tourist Principles implied may of fair also allow use and license art, bumper a sticker” buys poster, “who a or ... copyrighted work of a abroad to publicly “display it in America without (The bring Ante, lawfully could further authorization.” at 537. tourist

585 appears, telling regard, been court, it has in no Most an upon “horribles” in answer of the Court’s called to passed a since federal decades have actual case. Three reading applicable published opinion as court first an exclusively States. See Co in the United to Scorpio Broadcasting System, Distrib Inc. v. Music lumbia (ED 1983), summarily Supp. utors, Pa. F. Inc., 569 1984) (CA3 (table). Kirtsaeng Yet and aff’d, 738 F. 2d single supporting amici a case which his cite not good sale in the authorized for owner of a consumer infringement after resell sued for States has been charity. ing away gift giving a or to the item or as Routinely suing unsurprising. absence lawsuits is of such practice.26 hardly Manu one’s customers is a best business may do business with hesitant to facturers, moreover,, be art, into the United States under poster, bumper the work of sticker 602(a)(l)’s 602(a)(3)(B), ban provides U. S. C. which arriving by any person does not from outside apply “importation to ... forming part . . . of such respect States . . . with the United Furthermore, clearly an individual person’s personal baggage.”) foreign-made liability merely displaying not a infringement incur for 106(5) (granting the owners poster or other home. artwork her See works, dramatic, copyrights “literary, musical, choreographic pantomimes, works” the exclusive pictorial, graphic, sculptural added)). (emphasis display publicly” “to copyrighted work (a displayed place open “at a displayed “publicly” also 101 if it is work is persons outside public any place to the or at number where a substantial gathered” acquaintances is family a normal circle and its social 8-192.2(1) (“[A] added)). §8.14[C][1], perform- (emphasis Cf. Nimmer guests public not a family and invited ance limited to members of the (footnote omitted)). performance.” secondary may always markets Exerting extensive control over Carmakers, example, often be in a best interest. manufacturer’s Nolan, See, g., e. UD Grad trumpet the resale value their vehicles. (“Cadil News, 2, 2009, Daily Apr. p. A8 Marketing, Dayton Leads Cadillac prospective value warranty its and reliable resale plays up coverage lac rise, customers.”). reselling vehicles were If the transaction costs price they are value, and thus the perception of new ear’s consumers’ car, hardly outcome favorable to might fall—an willing pay for such automobile manufacturers. programmers suing

software taken to consumers. Manufac- may programmers agree turers also insist that software barring contract terms such lawsuits. provides explanation

The Court a different for the absence opinion— consequences predicted of the untoward in its namely, regarding scope that lower court decisions 109(a)’s prescription first sale have been uniform. Uncertainty generated by conflicting Ante, at 544. these may decisions, the notes, Court have some deterred pressing infringement owners from Ante, at claims. 544-545. suggests, copy- But if, as the Court there are a multitude of right champing bring against owners at the bit to lawsuits libraries, art in museums, consumers an effort to exer- perpetual cise control over the downstream distribution and public display foreign-made copies, might expect one not that at least a handful have of such lawsuits would been filed past years? over the of such absence suits indicates “practical problems” hypothesized the Court greatly exaggerated. surely They are at 545.27 do Ante, ability It should not prevent importation be overlooked that the foreign-made copies Wiley offer encourages copyright owners such as copies of their prices developed works at reduced to consumers less might countries who otherwise be unable to afford them. The Court’s however, holding, prevents barring from copyright owners low-priced States, of such they into will compete the United where with the higher priced editions make available for sale owners country. protect market, To profit margins copy their in the U. S. may prices owners developed may raise in less countries or withdraw from such altogether. markets Amicus See Brief for United States as 26; Curiae Brief Text Academic Authors Association as Amicus 12; Curiae Brief for Association of as American Publishers Amicus Curiae (a 37. See Chiappetta also 357-358 rule national exhaustion “encour entry ages and participation lower, developing locally markets at more prices by affordable risky eliminating cheaper parallel them as sources markets”). imports back premium into an disserve Such outcome would especially consumers—and developing students—in nations and would hardly advance the foreign policy goals” supporting “American educa- intent, in Congress’ expressed not warrant disregarding to owners the to bar the 602(a)(1), authority grant copyright works. Cf. Hart their foreign-made copies importation Bank, Planters A., Ins. N. Underwriters Co. Union v. ford (“[W]hen (2000) the statute’s is language plain, U. S. least where the of the courts—at disposition sole function the text is not absurd—is enforce required by according (internal omitted)). marks to its terms.” quotation

V I of statutory interpretation To recapitulate, objective American Congress.” is “to effect to the intent give Trucking Assns., Here, two 542. S., congressional 310 U. at 602(a)(1), in- Congress aims are First, enacting evident. to segment tended to owners grant permission the importation foreign- international markets by barring codification Second, as into the United States. did not want underscores, of the first sale Congress doctrine §106(3) conferred be the exclusive distribution right these objectives, boundless. Instead harmonizing It Court the first the second. entirely subordinates three treatises on U. S. major that none of the unsurprising 109(a). § law construction embrace the Court’s 8-184.35; Gold- §8.12[B][6][c], See 2 at 8-184.34 Nimmer §§13:22, 13:44, 13:44.10. 7.6.1.2(a), 7:141; stein Patry Rather than international-exhaustion very adopting resisted consistently rule the United has States to the I would adhere international-trade negotiations, Act’s set national-exhaustion framework §in 602(a)(1), text codified Under that history. regime, foreign-made unauthorized Kirtsaeng’s Wiley’s copyrights. textbooks involved in this ease infringed I judgment. affirm the Circuit’s therefore Second Quality King Brief development tion in such and economic countries. 25-26.

Case Details

Case Name: Kirtsaeng v. John Wiley & Sons, Inc.

Court Name: Supreme Court of the United States

Date Published: Mar 19, 2013

Citation: 568 U.S. 519

Docket Number: 11-697

Court Abbreviation: SCOTUS