40 Pages Posted: 10 Jul 2012 Last revised: 10 Sep 2012
Date Written: July 9, 2012
The first sale doctrine has long provided that legitimate owners of non-infringing copies of copyrighted works may use and sell their copies as they see fit — just as all property owners may generally use and alienate their property. In keeping with that rationale, the doctrine traditionally applied to all works made and sold by the copyright holder or its licensee, regardless of the place of the manufacture or the first sale of a particular copy. The Second Circuit’s contrary holding — that 17 U.S.C. § 109(a) categorically bars application of the first sale doctrine to foreign-made goods — runs contrary to the statutory context in which § 109(a) appears, the common-law backdrop against which Congress legislated, and analogous principles of patent law as well.
Suggested Citation: Suggested Citation
Perzanowski, Aaron and Schultz, Jason and Joseffer, Daryl and Mezzina, Paul Alessio, Brief of 25 Intellectual Property Law Professors in Kirtsaeng v. John Wiley & Sons, No. 11-697 (July 9, 2012). UC Berkeley Public Law Research Paper No. 2102831; Wayne State University Law School Research Paper No. 2012-09. Available at SSRN: https://ssrn.com/abstract=2102831 or http://dx.doi.org/10.2139/ssrn.2102831