The 2nd U.S. Circuit Court of Appeals has ruled that “the first sale doctrine, which allows a person who buys a legally produced copyrighted work to sell or otherwise dispose of the work as he sees fit, does not apply to works manufactured outside of the United States.” The court found Supap Kirtgaeng guilty of copyright infringement for selling Asian editions of Wiley & Sons textbooks on eBay. The texts had been shipped to him by friends and family in who purchased them in Thailand, where they had been manufactured under license by an Asian subsidiary of Wiley & Sons.
According to Reuters, Kirtgaeng’s attorney criticized the court for “writing the first sale doctrine out of the statute.”
In a statement, Mitchell Zimmerman (Chair of the Copyright Group at Fenwick & West) warned the ruling could “alter established law on resale of books, electronic products and any other works that are commonly made abroad – or that could be if manufacturers decide they want to control or to entirely prohibit the re-sale of their copyrighted works. Wiley’s broad holding is in conflict with a Ninth Circuit decision on the issue – one that the Supreme Court reviewed only last year, but affirmed based on a four-four split – so it seems almost inevitable that the issue will again be presented to the high court.”
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