Seamaster-ing the First Sale Doctrine: A Tripartite Framework for Navigating the Applicability of Section 109(a) to Gray Market Goods

Abstract

The applicability of the first sale doctrine of copyright law (17 U.S.C. § 109(a)) to gray market goods manufactured abroad has been cause for controversy among the circuit courts. It is unclear whether the language of this statute, particularly the words "lawfully made under this title" refers to geographic origin or jurisdictional origin, or if it refers to something else. Moreover, the last Supreme Court decision on the issue Costco v. Omega rendered inconclusive after it upheld the decision of the 9th Circuit 4-4. In the October 2012 term, the Supreme Court will once again have the chance to evaluate the meaning of this phrase in John Wiley & Sons v. Kirtsaeng. This note examines the effect of the varying interpretations of this statute through the lens of the luxury goods industry.

Keywords: Costco, Omega, Kirtsaeng, Wiley, first sale doctrine, copyright, copyright law, gray market goods, luxury goods, 17 U.S.C. § 109(a)