In the fall of 2011, we reported on the decision of the U.S. Court of Appeals for the Second Circuit holding that goods manufactured and sold abroad and imported into the United States without authorization from the copyright owner cannot qualify for the "first sale" defense.1 Last month, in Kirtsaeng v. John Wiley & Sons,2 a divided U.S. Supreme Court reversed the Second Circuit and held that the defense applies equally to U.S. and foreign-made goods, thereby substantially vitiating the exclusive importation right that copyright owners had relied upon in their territorial licensing practices.
Justice Stephen G. Breyer, writing the opinion of the court, and Justice Ruth Bader Ginsburg, dissenting, provided sharply conflicting views on issues of statutory interpretation, legislative history, copyright policy and potential consequences of the decision. We cannot do these opinions justice in this brief article, but we will try to hit the high points.
Prior Interpretations
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