The “first sale doctrine” had its genesis in a 1908 Supreme Court case in which the Court held that owners of copyrighted work have no control over the resale price of their work after it has entered the stream of commerce. See Bobbs-Merrill Co. v. Straus, 210 U.S. 339, 350 (1908). This holding is now reflected in 17 U.S.C. § 109(a), which provides that “the owner of a particular copy . . . lawfully made under this title . . . is entitled, without the authority of the copyright owner, to sell or otherwise dispose of the possession of that copy . . . .” (emphasis added).
Another copyright law, however, makes it unlawful to import foreign-made copies of copyrighted work into the U.S. without the copyright owner's approval. See 17 U.S.C. § 602(a). In 2011’s John Wiley & Sons, Inc. v. Kirtsaeng, Judge Garvan Murtha penned a dissent that highlights the following circuit split over whether § 109(a) applies to foreign-manufactured goods imported into the U.S.:
§ 109(a) requires (1) the person claiming protection be the owner of the copy, and (2) the copy was "lawfully made under this title." 17 U.S.C. § 109(a). Courts have split over the meaning of "lawfully made under this title," with some holding it means "legally manufactured... within the United States," CBS v. Scorpio Music Distrib., 569 F. Supp. 47, 49 (E.D. Pa. 1983), aff'd without opinion, 738 F.2d 424 (3d Cir. 1984); see also Omega S.A. v. Costco Wholesale Corp., 541 F.3d 982, 987 (9th Cir. 2008), aff'd by an equally divided court 131 S. Ct. 565 (2010), and others "confess[ing] some uneasiness with this construction" and suggesting "lawfully made under this title" refers not to the place a copy is manufactured but to the lawfulness of its manufacture as a function of U.S. copyright law. Sebastian Int'l, Inc. v. Consumer Contacts (PTY) Ltd., 847 F.2d 1093, 1098 n.1 (3rd Cir. 1988).
No. 09-4896-cv (2d Cir. Aug. 15, 2011). The dissent continues, "Here, the district court held — and the majority affirms — the doctrine does not apply to imported copies that were made abroad because § 109(a) applies only to copies that are 'lawfully made under this title,' and that means physically manufactured in the United States." See John Wiley & Sons, Inc. v. Kirtsaeng, No. 08 Civ 7834, 2009 WL 3364037, at *9 (S.D.N.Y. Oct. 19, 2009).
I think the takeaway here is, until the Supreme Court resolves this issue, you would be wise to think twice before purchasing that bootleg copy of Rush Hour 3 on eBay. Actually, you would be wise to think twice before purchasing a copy of Rush Hour 3, period.
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