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Key Facts
- Federal level: 17 U.S.C. § 109(a) lets the owner of a particular copy or phonorecord “lawfully made under this title” sell or otherwise dispose of that possession without the copyright owner’s authority.
- Federal level: 17 U.S.C. § 602(a)(1) treats unauthorized importation into the United States of copies or phonorecords acquired outside the United States as infringement of the exclusive right to distribute.
- Federal level: The Supreme Court held in Kirtsaeng v. John Wiley that the “first sale” doctrine applies to copies of a copyrighted work lawfully made abroad.
- Federal level: The Supreme Court docket for No. 11-697 shows an American Bar Association amicus curiae brief was filed on September 7, 2012.
- Federal level: The government’s amicus question presented asked whether a copy made outside the United States is “lawfully made under this title” for purposes of § 109(a)’s exception to § 602(a)(1).
- Federal level: Impression Products v. Lexmark International syllabus material describes Kirtsaeng as applying the first-sale doctrine to copies lawfully made and sold abroad.
This archive recovery explains a 2012-era filing episode around Kirtsaeng v. John Wiley & Sons, Inc., and it uses the controlling federal statutory text and Supreme Court materials to explain what the law says about first sale and unauthorized importation.
- Why this archive item mattered in 2012
- The federal statutory framework for first sale versus importation
- What the Supreme Court held in Kirtsaeng
- How the briefing connected § 602(a)(1) and § 109(a)
- What the docket verifies about the ABA’s involvement
- A simple way to keep history and the legal rule separate
- Sources
Why this archive item mattered in 2012
The legacy post discussed the American Bar Association’s participation in Kirtsaeng through an amicus curiae brief, at a time when courts needed to interpret how the Copyright Act’s “first sale” entitlement interacts with restrictions on unauthorized importation.
For broader ABA-focused historical archive context, see Anthony Kennedy’s ABA annual meeting speech.
The federal statutory framework for first sale versus importation
Federal copyright law treats two related issues in different parts of Title 17: one section addresses when a lawful owner may sell or dispose of a particular copy, while another section addresses when importing copies acquired abroad can be infringement.
17 U.S.C. § 109(a) contains the “lawfully made under this title” first-sale entitlement language.
17 U.S.C. § 602(a)(1) contains the general unauthorized importation infringement rule tied to the exclusive right to distribute.
What the Supreme Court held in Kirtsaeng
In Kirtsaeng v. John Wiley & Sons, Inc. (No. 11-697), the Supreme Court held that the “first sale” doctrine applies to copies of a copyrighted work that are lawfully made abroad, stating: “We hold that the ‘first sale’ doctrine applies to copies of a copyrighted work lawfully made abroad.” (Kirtsaeng v. John Wiley holding).
The Court also addressed the meaning of the statutory phrase “lawfully made under this title” and treated it as making a legal difference that does not hinge on limiting the doctrine to domestically made copies.
How the briefing connected § 602(a)(1) and § 109(a)
The government’s amicus framing treated the dispute as whether a foreign-made copy could be covered by § 109(a)’s exception through the phrase “lawfully made under this title,” even though § 602(a)(1) generally targets unauthorized importation as an infringement of the exclusive distribution right.
That question is set out in the Copyright Office-hosted amicus PDF as the “QUESTION PRESENTED” in terms of whether a copy made outside the United States is “lawfully made under this title” and therefore covered by § 109(a)’s exception to § 602(a)(1). (U.S. government amicus question presented).
What the docket verifies about the ABA’s involvement
The Supreme Court docket record for No. 11-697 confirms that an American Bar Association amicus curiae brief was filed on September 7, 2012. (Supreme Court docket for 11-697).
For the legal rule, the controlling sources are the Copyright Act provisions and the Supreme Court’s interpretation in Kirtsaeng, with later Supreme Court syllabus material providing additional continuity on how the abroad-made first-sale concept gets summarized. In that later syllabus material, the Court described Kirtsaeng as applying first sale to copies lawfully made and sold abroad. (Impression Products v. Lexmark syllabus).
A simple way to keep history and the legal rule separate
Archive items often reflect advocacy and reporting of the day, while the legal meaning comes from the enacted statutes and the Supreme Court’s holdings. In this topic, the docket helps establish that the ABA filed an amicus brief, and Title 17 plus Kirtsaeng supply the controlling legal framework for first sale and unauthorized importation.
