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The First Sale Doctrine: Used Books

The First Sale Doctrine: Used Books

“The purchaser of a book, once sold by authority of the owner of the copyright, may sell it again, although he could not publish a new edition of it.”   Bobbs-Merrill Co. v. Straus, 210 U.S. 339, 350 (1908). 


Has anyone ever wondered how it’s possible to buy a book, protected by copyright law, then turn around and sell it after done reading it?  It’s common practice and nobody—usually--ever thinks twice about what protects this practice.  The right to resell largely stems from a U.S. Supreme Court case, Bobbs-Merrill Co. v. Straus.

In this case, the owner (of a copyright) had a copyright on a book, then imposed minimum resale pricing to subsequent owners of the good (non-owners of the copyright).  If anyone violated this, then it was considered infringement.  The issues in the case went up to the U.S. Supreme Court, and the Court ultimately said:

What the complainant contends for embraces not only the right to sell the copies, but to qualify the title of a future purchaser by the reservation of the right to have the remedies of the statute against an infringer because of the printed notice . . . unless the purchaser sells at a price fixed in the notice. To add to the right of exclusive sale the authority to control all future retail sales, by a notice that such sales must be made at a fixed sum, would give a right not included in the terms of the statute, and, in our view, extend its operation, by construction, beyond its meaning, when interpreted with a view to ascertaining the legislative intent in its enactment.  Id. at 351.

Bobbs-Merrill Co. resulted in the “first sale” doctrine.  It was codified and is now found in 17 U.S.C. s. 109(a) (2012).  In sum, if the first purchase or sale was made lawfully—not by infringement or other illegal acts—then the owner could sell, distribute, or sell without being in violation of copyright laws.

The Copyright Office has also said, “[t]he distribution right . . . enables the copyright owner to prevent alienation of the copy—up to a point . . . when ownership of a lawfully made copy is transferred to another person.”  DMCA s. 104 Report 86-87 (2001).

This doctrine was re-affirmed in 2013, in the case of Kirtsaeng v. John Wiley & Sons, Inc., 568 U.S. 519 (2013).  Justice Breyer opened the opinion in noting how the mechanics of the “first sale” doctrine work.  “[O]nce a copy of [a book] has been lawfully sold (or its ownership otherwise lawfully transferred), the buyer of that copy and subsequent owners are free to dispose of it as they wish.  In copyright jargon, the ‘first sale’ has ‘exhausted’ the copyright owner’s § 106(3) exclusive distribution right.”  Id. at 524. 

In Kirtsaeng, the “first sale” doctrine issue concerned printing a work abroad with the owner’s permission.  The issue presented was whether the “first sale” doctrine still applied.  Could the purchased copy be brought into the U.S. and then resold?  This put 17 U.S.C. s. 602(a)(1) at issue which says:

“[i]mportation into the United States, without the authority of the owner of copyright under this title, of copies . . . of a work that have been acquired outside the United States is an infringement of the exclusive right to distribute copies . . . under section 106 . . . .” 17 U. S. C. § 602(a)(1) (emphasis added).

The Court held that that the “first sale” doctrine  applied to “copies of copyrighted worked lawfully made abroad.”  Id. at 525; see also id. at 554.

In Kirtsaeng, a PhD student from Thailand asked his friends and family to purchase copies of books printed by John-Wiley & Sons at a lower price and mail them to him in the U.S.  He would resell them in the U.S. for a higher amount, and “reimburse his family and friends, and keep the profit.”  Id. at 527.  John-Wiley had placed copyright notices in its books restricting the importation of books into different territories.  It printed copies in the U.S. and other copies abroad.  Each copyright notice stated how distribution would be limited in those regions.  John-Wiley brought the federal lawsuit alleging that the “unauthorized importation of its books and [ ] later resale of those books amounted to an infringement of Wiley’s § 106(3) exclusive right to distribute as well as § 602’s related import prohibition. 17 U. S. C. §§ 106(3)  ], 602(a) [ ]. See also § 501 [ ] (authorizing infringement action). Kirtsaeng replied that the books he had acquired were ‘lawfully made’ and that he had acquired them legitimately. . . . Thus, in his view, § 109(a)’s ‘first sale’ doctrine permitted him to resell or otherwise dispose of the books without the copyright owner’s further permission.”  Id. at 527.

At the trial level, the jury determined that Kirtsaeng violated Wiley’s copyrights by selling eight works that were purchased abroad and imported into the U.S. for future sale, and that the “first sale” doctrine did not apply.  He was assessed $600,000 ($75,000 each).  The Second Circuit affirmed.  The U.S. Supreme Court took cert as there was an apparent circuit split regarding the “first sale” doctrine’s application to copies manufactured outside of the U.S.

The case hinged upon section 109(a)’s language, “lawfully made under this title” as either being a geographical limitation, or a non-geographical limitation.  Id. at 528-29.  The Court believed that Congress’s language in section 109(a) and the common law “first sale” doctrine, when considered together, favored a non-geographical interpretation.  Id. at 520.  “Congress would [not] have intended to create the practical copyright-related harms with which a geographical interpretation would threaten ordinary scholarly, artistic, commercial, and consumer activities.”  Id.

This is significant as the Court further lays out as section 109(c)--if read as a limit to geography--would limit “one who buys a copyrighted work of art, a poster, or even a bumper sticker, in Canada, [etc.] could not display it in America without the copyright owner’s further authorization.  Id. at 537.  Section 109(e) read with geographical limitations would mean “that an arcade owner could not (‘without the authority of the copyright owner’) perform or display arcade games (whether new or used) originally made in Japan.”  Id.  Section 110(1) would limit teachers “(without further authorization) [to] use a copy of a film during class if the copy was lawfully made in [other countries].”  Id

The court further asks, “[a]re libraries to stop circulating or distributing or displaying the millions of books in their collections that were printed abroad?  Used-book dealers tell us that, from the time when Benjamin Frankling and Thomas Jefferson built commercial and personal libraries of foreign books, American readers have bought used books published and printed abroad.”  Id. at 541.  Further, “used-book dealers cannot easily predict what the foreign copyright holder may think about a reader’s effort to sell a used copy of a novel.”  Id. at 542.  Additionally, are art museums also limited to a geographical restriction, which “would require the museums to obtain permission from the copyright owners before they could display the work[?] [. . .] What are the museums to do [ ] if the artist retained the copyright, if the artist cannot be found, or if a group of heirs is arguing about who owns which copyright?”  Id. at 543.

The Court reaffirmed  the “first sale” doctrine (reversing the lower court) as it “frees [the] courts from the administrative burden of trying to enforce restrictions upon difficult-to-trace, readily movable goods.  And it avoids the selective enforcement inherent in any such effort.”  Id. 539, 554.

-Kyle and Niles

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