January 19, 2022

Supreme Court Rules in Kirtsaeng v. Wiley: “First Sale Doctrine Applies to Copies of Copyrighted Work Lawfully Made Abroad”

“The “first sale” doctrine applies to copies of a copyrighted work lawfully made abroad.”

The Decision

6-3 (Ginsburg dissents, joined by Kennedy and in part by Justice Scalia)
Justice Breyer writes opinion
Justice Kagan files concurring opinion joined by Justice Alito

Read the Opinion

Opinion: Kirtsaeng v. John Wiley & Sons, Inc.


Justice Stephen Breyer said in his opinion for the court that once goods are sold lawfully, whether in the U.S. or elsewhere, publishers and manufacturers lose the protection of U.S. copyright law.


In a dissent for herself and Justices Anthony Kennedy and Antonin Scalia, Justice Ruth Bader Ginsburg said the court was ignoring Congress’ aim of protecting “copyright owners against the unauthorized importation of low-priced, foreign-made copies of their copyrighted works.”

Justice Elena Kagan, joined by Justice Samuel Alito, said in a separate opinion that Congress is free to change the law if it thinks holders of copyrights need more protection. Chief Justice John Roberts and Justices Sonia Sotomayor and Clarence Thomas also were part of the court’s majority.

Writing for the court, Justice Stephen Breyer said a ruling in favor of Wiley would have subjected retailers to “the disruptive impact of the threat of infringement suits.” Breyer also said the publishers’ and manufacturers’ position would “threaten ordinary, scholarly, artistic, commercial and consumer activities,” rendering libraries unable to circulate many books printed overseas.
The first sale doctrine is too important to as a doctrine that’s too important to mess around with; a “common-law doctrine with an impeccable historical pedigree,” in the words of today’s opinion. The doctrine “frees courts from the administrative burden of trying to enforce restrictions upon difficult-to-trace, readily movable goods.”



See Also: Case Filings via SCOTUSBlog

About Gary Price

Gary Price (gprice@mediasourceinc.com) is a librarian, writer, consultant, and frequent conference speaker based in the Washington D.C. metro area. Before launching INFOdocket, Price and Shirl Kennedy were the founders and senior editors at ResourceShelf and DocuTicker for 10 years. From 2006-2009 he was Director of Online Information Services at Ask.com, and is currently a contributing editor at Search Engine Land.