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ARTICLE · 10 APRIL 2013

IP Update, Vol. 16, No. 3, March 2013

McDermott Will & Emery
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In a 6–3 ruling, the Supreme Court has now held that the "first sale" doctrine applies to copies of a copyrighted work lawfully made abroad and then imported into the United States for sale or other disposal of the work.

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Edited by Paul Devinsky and Rita Weeks

SUPREME COURT / COPYRIGHTS / FIRST SALE

Supreme Court Finds That "First Sale" Doctrine Applies to Works

by Sarah Bro and Paul Devinsky

In a 6–3 ruling, resolving an issue left open since the Supreme Court of the United States' 4–4 deadlock in Costco Wholesale v. Omega S.A., (See IP Update, Vol. 11, No. 10, and IP Update, Vol. 13, No. 12), the Supreme Court has now held that the "first sale" doctrine, as codified under § 109(a) of the Copyright Act, applies to copies of a copyrighted work lawfully made abroad and then imported into the United States for sale or other disposal of the work. Kirtsaeng v. John Wiley & Sons Inc., Case No. 11-697 (Mar. 19, 2013). Justice Breyer's majority opinion was joined by Chief Justice Roberts and Justices Thomas, Alito, Sotomayor and Kagan. Justice Kagan also issued a concurring opinion in which Alito joined. The Court's analysis centered around interpretation of the language of the

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