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West Ashley Library
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Phone: (843) 766-6635
Folly Beach Library
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Phone: (843) 588-2001
Edgar Allan Poe/Sullivan's Island Library
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Phone: (843) 883-3914
Wando Mount Pleasant Library
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Phone: (843) 805-6888
Village Library
9 a.m. - 1 p.m.
Phone: (843) 884-9741
St. Paul's/Hollywood Library
9 a.m. - 8 p.m.
Phone: (843) 889-3300
Otranto Road Library
9 a.m. - 8 p.m.
Phone: (843) 572-4094
Mt. Pleasant Library
9 a.m. - 8 p.m.
Phone: (843) 849-6161
McClellanville Library
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Keith Summey North Charleston Library
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John's Island Library
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Phone: (843) 559-1945
Hurd/St. Andrews Library
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Miss Jane's Building (Edisto Library Temporary Location)
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Dorchester Road Library
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A TEXTBOOK DILEMMA: SHOULD THE FIRST SALE DOCTRINE PROVIDE A VALID DEFENSE FOR FOREIGN-MADE GOODS?
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- Author(s): Goldberg, Melissa
- Source:
Fordham Law Review; May2012, Vol. 80 Issue 6, p3057-3092, 36p- Subject Terms:
- Source:
- Additional Information
- Subject Terms:
- Subject Terms:
- Abstract: The "first sale" doctrine, section 109(a) of the Copyright Act of 1976, gives the owner of a lawfully made copy of a work the right to sell it without the copyright holder's authorization. Section 602(a), meanwhile, prohibits the unauthorized importation of a copyrighted work. What happens if someone buys a copy of a work outside of the United States, brings the copy into the United States, and then tries to sell it? Does the "first sale" doctrine apply, so that the foreign copy can be sold in the United States? Or does the anti-importation provision control? If it does, the seller would not be able to invoke the "first sale" safe harbor and would be liable under federal copyright law if she did not obtain the copyright holder's authorization for the U.S. sale. In John Wiley & Sons Inc. v. Kirtsaeng, the Second Circuit held that the statutory language of the first sale doctrine, specifically the words "lawfully made under this title," does not extend the first sale safe harbor to copies made outside of the United States. This holding rendered it unnecessary to consider whether the anti-importation provision applies. In so doing, the Second Circuit relied on its reading of the U.S. Supreme Court decision in Costco v. Omega. This Note suggests that the Supreme Court should find that the Second Circuit was incorrect in its interpretation of the first sale doctrine, but this Note does not decide whether the anti-importation provision should apply to Kirtsaeng if the case is remanded. The Wiley court misinterpreted the first sale doctrine's statutory language and also misconstrued the holding in Omega, in which the Court split 4-4 on the relevant issue, creating no binding precedent. The Wiley holding creates a perverse incentive: copyright holders can now avoid the first sale doctrine altogether by moving production overseas. This holding conflicts with the fundamental balance of policies at the core of copyright. [ABSTRACT FROM AUTHOR]
- Abstract: Copyright of Fordham Law Review is the property of Fordham University School of Law and its content may not be copied or emailed to multiple sites or posted to a listserv without the copyright holder's express written permission. However, users may print, download, or email articles for individual use. This abstract may be abridged. No warranty is given about the accuracy of the copy. Users should refer to the original published version of the material for the full abstract. (Copyright applies to all Abstracts.)
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