sept12_b.indd


C&RL News September 2012 498

Corey Williams is associate director, ALA Office of 
Government Relations, e-mail: cwilliams@alawash.org

W a s h i n g t o n  H o t l i n eCorey Williams

Supreme Court First Sale Doctrine case
All eyes are on the U.S. Supreme Court this 
fall with arguments scheduled to begin Octo-
ber 29, 2012, in the case of Kirtsaeng v. John 
Wiley & Sons. At the heart of the case is the 
first sale doctrine, which is also at the heart 
of what allows libraries to do what they do—
lend books and other materials to the public.

The issue before the court is so critical 
to libraries that the Library Copyright Alli-
ance (LCA)—comprised of ACRL, ALA, and 
the Association of Research Libraries—filed 
an amicus curiae, or friend of the court 
brief, with the Supreme Court in support of 
the petitioner Supap Kirtsaeng (available at 
www.librarycopyrightalliance.org/bm~doc 
/lca-kirtsaeng-brief-3july2012.pdf). 

To summarize the case, the publisher 
Wiley claims that Kirtsaeng infringed their 
copyrights by reselling foreign editions of 
Wiley textbooks at a cheaper price in the 
United States, even though Kirtsaeng’s family 
lawfully purchased the textbooks abroad.  At 
issue is the first sale doctrine, which is the 
provision of U.S. Copyright Act that allows 
any purchaser of a legal copy of a book or 
other copyrighted work to sell or lend that 
copy.  

However, the U.S. Court of Appeals for the 
Second Circuit ruled that the first sale doctrine 
applies only to copies manufactured in the 
United States. This arguably odd interpreta-
tion effectively strips libraries of their first sale 
rights to lend copies of books and materials 
manufactured abroad.  

As the LCA’s brief explains, this case con-
cerns the meaning of the phrase “lawfully 
made under this title” in Section 109(a). The 

Second Circuit ruled that “lawfully made un-
der this title” means lawfully manufactured 
in the United States. In other words, how this 
Court interprets the phrase “lawfully made 
under this title” could determine the extent 
to which libraries can continue to perform 
their historic function of lending books and 
materials to the public.

LCA believes that an adverse decision in 
this case by the Supreme Court (i.e., uphold-
ing the Second Circuit Court of Appeals deci-
sion) could affect libraries’ right to lend books 
and other materials manufactured abroad.

Also, this is not the first time the Supreme 
Court has taken up the issue of the first sale 
doctrine. LCA filed a brief in 2010 with the 
Supreme Court in Costco v. Omega, a case 
involving the importation of luxury watches 
with copyrighted logos (available at www.
librarycopyrightalliance.org/bm~doc/lca 
-costco-amicus.pdf). 

Ultimately, the Court was deadlocked 4-4, 
leaving the issue unresolved. Justice Elena 
Kagan recused herself from the case due to 
her participation in the lower court when she 
was Solicitor General. However, Kagan will 
participate in the Kirtsaeng case.  

In conclusion, a Supreme Court decision 
in the case of Wiley v. Kirtsaeng is not antici-
pated until sometime in the New Year—likely 
not long after the 113th Congress convenes 
in January 2013. 

While the outcome of the case is un-
known, it is becoming increasingly clear that 
the potential for legislative activity addressing 
the first sale doctrine is likely. With libraries’ 
ability to lend in the balance, LCA members 
will continue to monitor the potential for leg-
islation and work to uphold and protect our 
libraries’ ability to lend materials no matter 
where they were manufactured.