(Slip Opinion) OCTOBER TERM, 2012 1 

Syllabus 

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is

being done in connection with this case, at the time the opinion is issued.

The syllabus constitutes no part of the opinion of the Court but has been

prepared by the Reporter of Decisions for the convenience of the reader. 

See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337. 

SUPREME COURT OF THE UNITED STATES 

Syllabus 

KIRTSAENG, DBA BLUECHRISTINE99 v. JOHN WILEY 

& SONS, INC. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR 

THE SECOND CIRCUIT 

No. 11–697. Argued October 29, 2012—Decided March 19, 2013 

The “exclusive rights” that a copyright owner has “to distribute copies

. . . of [a] copyrighted work,” 17 U. S. C. §106(3), are qualified by the

application of several limitations set out in §§107 through 122, including the “first sale” doctrine, which provides that “the owner of a 

particular copy or phonorecord 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 or phonorecord,” §109(a).

Importing a copy made abroad without the copyright owner’s permission is an infringement of §106(3). See §602(a)(1). In Quality King 

Distributors, Inc. v. L’anza Research Int’l, Inc., 523 U. S. 135, 145, 

this Court held that §602(a)(1)’s reference to §106(3) incorporates the

§§107 through 122 limitations, including §109’s “first sale” doctrine. 

However, the copy in Quality King was initially manufactured in the

United States and then sent abroad and sold. 

Respondent, John Wiley & Sons, Inc., an academic textbook publisher, often assigns to its wholly owned foreign subsidiary (Wiley

Asia) rights to publish, print, and sell foreign editions of Wiley’s English language textbooks abroad. Wiley Asia’s books state that they 

are not to be taken (without permission) into the United States.

When petitioner Kirtsaeng moved from Thailand to the United States

to study mathematics, he asked friends and family to buy foreign edition English-language textbooks in Thai book shops, where they sold 

at low prices, and to mail them to him in the United States. He then 

sold the books, reimbursed his family and friends, and kept the 

profit.

Wiley filed suit, claiming that Kirtsaeng’s unauthorized importation and resale of its books was an infringement of Wiley’s §106(3) 
 

 

 

2 KIRTSAENG v. JOHN WILEY & SONS, INC. 

Syllabus 

exclusive right to distribute and §602’s import prohibition. Kirtsaeng

replied that because his books were “lawfully made” and acquired legitimately, §109(a)’s “first sale” doctrine permitted importation and

resale without Wiley’s further permission. The District Court held 

that Kirtsaeng could not assert this defense because the doctrine 

does not apply to goods manufactured abroad. The jury then found

that Kirtsaeng had willfully infringed Wiley’s American copyrights 

and assessed damages. The Second Circuit affirmed, concluding that

§109(a)’s “lawfully made under this title” language indicated that the 

“first sale” doctrine does not apply to copies of American copyrighted 

works manufactured abroad. 

Held: The “first sale” doctrine applies to copies of a copyrighted work

lawfully made abroad. Pp. 7–33.

(a) Wiley reads “lawfully made under this title” to impose a geographical limitation that prevents §109(a)’s doctrine from applying to

Wiley Asia’s books. Kirtsaeng, however, reads the phrase as imposing the non-geographical limitation made “in accordance with” or “in

compliance with” the Copyright Act, which would permit the doctrine

to apply to copies manufactured abroad with the copyright owner’s 

permission. Pp. 7–8.

(b) Section 109(a)’s language, its context, and the “first sale” doctrine’s common-law history favor Kirtsaeng’s reading. Pp. 8–24.

(1) Section 109(a) says nothing about geography. “Under” can 

logically mean “in accordance with.” And a nongeographical interpretation provides each word in the phrase “lawfully made under this 

title” with a distinct purpose: “lawfully made” suggests an effort to 

distinguish copies that were made lawfully from those that were not, 

and “under this title” sets forth the standard of “lawful[ness]” (i.e., 

the U. S. Copyright Act). This simple reading promotes the traditional copyright objective of combatting piracy and makes word-byword linguistic sense. 

In contrast, the geographical interpretation bristles with linguistic

difficulties. Wiley first reads “under” to mean “in conformance with 

the Copyright Act where the Copyright Act is applicable.” Wiley then 

argues that the Act “is applicable” only in the United States. However, neither “under” nor any other word in “lawfully made under this

title” means “where.” Nor can a geographical limitation be read into 

the word “applicable.” The fact that the Act does not instantly protect an American copyright holder from unauthorized piracy taking 

place abroad does not mean the Act is inapplicable to copies made

abroad. Indeed, §602(a)(2) makes foreign-printed pirated copies subject to the Copyright Act. And §104 says that works “subject to protection” include unpublished works “without regard to the [author’s]

nationality or domicile,” and works “first published” in any of the 
 

 

 

 

Cite as: 568 U. S. ____ (2013) 3 

Syllabus 

nearly 180 nations that have signed a copyright treaty with the

United States. Pp. 8–12.

(2) Both historical and contemporary statutory context indicate

that Congress did not have geography in mind when writing the present version of §109(a). A comparison of the language in §109(a)’s

predecessor and the present provision supports this conclusion. The 

former version referred to those who are not owners of a copy, but 

mere possessors who “lawfully obtained” a copy, while the present 

version covers only owners of a “lawfully made” copy. This new language, including the five words at issue, makes clear that a lessee of

a copy will not receive “first sale” protection but one who owns a copy 

will be protected, provided that the copy was “lawfully made.” A 

nongeographical interpretation is also supported by other provisions 

of the present statute. For example, the “manufacturing clause,” 

which limited importation of many copies printed outside the United

States, was phased out in an effort to equalize treatment of copies 

made in America and copies made abroad. But that “equal treatment” principle is difficult to square with a geographical interpretation that would grant an American copyright holder permanent control over the American distribution chain in respect to copies printed 

abroad but not those printed in America. Finally, the Court normally 

presumes that the words “lawfully made under this title” carry the 

same meaning when they appear in different but related sections,

and it is unlikely that Congress would have intended the consequences produced by a geographical interpretation. Pp. 12–16.

(3) A nongeographical reading is also supported by the canon of 

statutory interpretation that “when a statute covers an issue previously governed by the common law,” it is presumed that “Congress 

intended to retain the substance of the common law.” Samantar v. 

Yousuf, 560 U. S. ___, ___. The common-law “first sale” doctrine, 

which has an impeccable historic pedigree, makes no geographical 

distinctions. Nor can such distinctions be found in Bobbs-Merrill Co. 

v. Straus, 210 U. S. 339, where this Court first applied the “first sale”

doctrine, or in §109(a)’s predecessor provision, which Congress enacted a year later. Pp. 17–19.

(4) Library associations, used-book dealers, technology companies, consumer-goods retailers, and museums point to various ways

in which a geographical interpretation would fail to further basic 

constitutional copyright objectives, in particular “promot[ing] the

Progress of Science and useful Arts,” Art. I, §8, cl. 8. For example, a 

geographical interpretation of the first-sale doctrine would likely require libraries to obtain permission before circulating the many books 

in their collections that were printed overseas. Wiley counters that

such problems have not occurred in the 30 years since a federal court 
 

 

4 KIRTSAENG v. JOHN WILEY & SONS, INC. 

Syllabus 

first adopted a geographical interpretation. But the law has not been 

settled for so long in Wiley’s favor. The Second Circuit in this case 

was the first Court of Appeals to adopt a purely geographical interpretation. Reliance on the “first sale” doctrine is also deeply embedded in the practices of booksellers, libraries, museums, and retailers,

who have long relied on its protection. And the fact that harm has 

proved limited so far may simply reflect the reluctance of copyright

holders to assert geographically based resale rights. Thus, the practical problems described by petitioner and his amici are too serious, 

extensive, and likely to come about to be dismissed as insignificant—

particularly in light of the ever-growing importance of foreign trade 

to America. Pp. 19–24. 

(c) Several additional arguments that Wiley and the dissent make

in support of a geographical interpretation are unpersuasive. Pp. 24– 

33. 

654 F. 3d 210, reversed and remanded. 

BREYER, J., delivered the opinion of the Court, in which ROBERTS, 

C. J., and THOMAS, ALITO, SOTOMAYOR, and KAGAN, JJ., joined. KAGAN, 

J., filed a concurring opinion, in which ALITO, J., joined. GINSBURG, J., 

filed a dissenting opinion, in which KENNEDY, J., joined, and in which 

SCALIA, J., joined except as to Parts III and V–B–1. 
 

 

_________________ 

_________________ 


 


 

Cite as: 568 U. S. ____ (2013) 1 

Opinion of the Court 

NOTICE: This opinion is subject to formal revision before publication in the

preliminary print of the United States Reports. Readers are requested to

notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order

that corrections may be made before the preliminary print goes to press. 

SUPREME COURT OF THE UNITED STATES 

No. 11–697 

SUPAP KIRTSAENG, DBA BLUECHRISTINE99, 

PETITIONER v. JOHN WILEY & SONS, INC.
 

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF 

APPEALS FOR THE SECOND CIRCUIT
 

[March 19, 2013]

 JUSTICE BREYER delivered the opinion of the Court. 

Section 106 of the Copyright Act grants “the owner of

copyright under this title” certain “exclusive rights,”

including the right “to distribute copies . . . of the copyrighted work to the public by sale or other transfer of 

ownership.” 17 U. S. C. §106(3). These rights are qualified, however, by the application of various limitations set

forth in the next several sections of the Act, §§107 through

122. Those sections, typically entitled “Limitations on

exclusive rights,” include, for example, the principle of 

“fair use” (§107), permission for limited library archival

reproduction, (§108), and the doctrine at issue here, the 

“first sale” doctrine (§109).

Section 109(a) sets forth the “first sale” doctrine as

follows: 

“Notwithstanding the provisions of section 106(3) [the 

section that grants the owner exclusive distribution

rights], the owner of a particular copy or phonorecord 

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 or 
 

 

2 KIRTSAENG v. JOHN WILEY & SONS, INC. 

Opinion of the Court 

phonorecord.” (Emphasis added.) 

Thus, even though §106(3) forbids distribution of a copy of, 

say, the copyrighted novel Herzog without the copyright 

owner’s permission, §109(a) adds that, once a copy of Herzog has been lawfully sold (or its ownership otherwise

lawfully transferred), the buyer of that copy and subsequent owners are free to dispose of it as they wish. In 

copyright jargon, the “first sale” has “exhausted” the 

copyright owner’s §106(3) exclusive distribution right. 

What, however, if the copy of Herzog was printed abroad 

and then initially sold with the copyright owner’s permission? Does the “first sale” doctrine still apply? Is the 

buyer, like the buyer of a domestically manufactured copy,

free to bring the copy into the United States and dispose of 

it as he or she wishes? 

To put the matter technically, an “importation” provision, §602(a)(1), says that 

“[i]mportation into the United States, without the authority of the owner of copyright under this title, of 

copies . . . of a work that have been acquired outside 

the United States is an infringement of the exclusive 

right to distribute copies . . . under section 106 . . . .” 

17 U. S. C. §602(a)(1) (2006 ed., Supp. V) (emphasis 

added). 

Thus §602(a)(1) makes clear that importing a copy 

without permission violates the owner’s exclusive distribution right. But in doing so, §602(a)(1) refers explicitly to 

the §106(3) exclusive distribution right. As we have just 

said, §106 is by its terms “[s]ubject to” the various doctrines and principles contained in §§107 through 122, including §109(a)’s “first sale” limitation. Do those same 

modifications apply—in particular, does the “first sale”

modification apply—when considering whether §602(a)(1) 

prohibits importing a copy? 

In Quality King Distributors, Inc. v. L’anza Research 
 

 

 

Cite as: 568 U. S. ____ (2013) 3 

Opinion of the Court 

Int’l, Inc., 523 U. S. 135, 145 (1998), we held that

§602(a)(1)’s reference to §106(3)’s exclusive distribution 

right incorporates the later subsections’ limitations, including, in particular, the “first sale” doctrine of §109.

Thus, it might seem that, §602(a)(1) notwithstanding, one

who buys a copy abroad can freely import that copy into

the United States and dispose of it, just as he could had he 

bought the copy in the United States.

But Quality King considered an instance in which the 

copy, though purchased abroad, was initially manufactured in the United States (and then sent abroad and

sold). This case is like Quality King but for one important 

fact. The copies at issue here were manufactured abroad.

That fact is important because §109(a) says that the “first 

sale” doctrine applies to “a particular copy or phonorecord 

lawfully made under this title.” And we must decide here 

whether the five words, “lawfully made under this title,”

make a critical legal difference. 

Putting section numbers to the side, we ask whether 

the “first sale” doctrine applies to protect a buyer or other

lawful owner of a copy (of a copyrighted work) lawfully

manufactured abroad. Can that buyer bring that copy

into the United States (and sell it or give it away) without 

obtaining permission to do so from the copyright owner?

Can, for example, someone who purchases, say at a used 

bookstore, a book printed abroad subsequently resell it 

without the copyright owner’s permission?

In our view, the answers to these questions are, yes. We 

hold that the “first sale” doctrine applies to copies of a 

copyrighted work lawfully made abroad. 

I 

A 

Respondent, John Wiley & Sons, Inc., publishes academic textbooks. Wiley obtains from its authors various 

foreign and domestic copyright assignments, licenses and 
 

4 KIRTSAENG v. JOHN WILEY & SONS, INC. 

Opinion of the Court 

permissions—to the point that we can, for present purposes, refer to Wiley as the relevant American copyright 

owner. See 654 F. 3d 210, 213, n. 6 (CA2 2011). Wiley

often assigns to its wholly owned foreign subsidiary, John 

Wiley & Sons (Asia) Pte Ltd., rights to publish, print, and 

sell Wiley’s English language textbooks abroad. App. to

Pet. for Cert. 47a–48a. Each copy of a Wiley Asia foreign 

edition will likely contain language making clear that the 

copy is to be sold only in a particular country or geographical region outside the United States. 654 F. 3d, at 213. 

For example, a copy of Wiley’s American edition says, 

“Copyright © 2008 John Wiley & Sons, Inc. All rights

reserved. . . . Printed in the United States of America.” 

J. Walker, Fundamentals of Physics, p. vi (8th ed. 2008).

A copy of Wiley Asia’s Asian edition of that book says: 

“Copyright © 2008 John Wiley & Sons (Asia) Pte

Ltd[.] All rights reserved. This book is authorized for 

sale in Europe, Asia, Africa, and the Middle East only 

and may be not exported out of these territories. Exportation from or importation of this book to another

region without the Publisher’s authorization is illegal

and is a violation of the Publisher’s rights. The Publisher may take legal action to enforce its rights. . . . 

Printed in Asia.” J. Walker, Fundamentals of Physics, 

p. vi (8th ed. 2008 Wiley Int’l Student ed.). 

Both the foreign and the American copies say: 

“No part of this publication may be reproduced, stored 

in a retrieval system, or transmitted in any form or

by any means . . . except as permitted under Sections

107 or 108 of the 1976 United States Copyright Act.” 

Compare, e.g., ibid. (Int’l ed.), with Walker, supra, at 

vi (American ed.). 

The upshot is that there are two essentially equivalent 

versions of a Wiley textbook, 654 F. 3d, at 213, each ver­
 

 

Cite as: 568 U. S. ____ (2013) 5 

Opinion of the Court 

sion manufactured and sold with Wiley’s permission: (1) 

an American version printed and sold in the United 

States, and (2) a foreign version manufactured and sold

abroad. And Wiley makes certain that copies of the second

version state that they are not to be taken (without permission) into the United States. Ibid. 

Petitioner, Supap Kirtsaeng, a citizen of Thailand,

moved to the United States in 1997 to study mathematics at Cornell University. Ibid. He paid for his education with the help of a Thai Government scholarship which 

required him to teach in Thailand for 10 years on his 

return. Brief for Petitioner 7. Kirtsaeng successfully

completed his undergraduate courses at Cornell, successfully completed a Ph. D. program in mathematics at the

University of Southern California, and then, as promised, 

returned to Thailand to teach. Ibid. While he was studying in the United States, Kirtsaeng asked his friends and 

family in Thailand to buy copies of foreign edition Englishlanguage textbooks at Thai book shops, where they sold at

low prices, and mail them to him in the United States. 

Id., at 7–8. Kirtsaeng would then sell them, reimburse 

his family and friends, and keep the profit. App. to Pet. for 

Cert. 48a–49a. 

B 

In 2008 Wiley brought this federal lawsuit against 

Kirtsaeng for copyright infringement. 654 F. 3d, at 213. 

Wiley claimed that Kirtsaeng’s unauthorized importation 

of its books and his later resale of those books amounted 

to an infringement of Wiley’s §106(3) exclusive right to distribute as well as §602’s related import prohibition. 17 

U. S. C. §§106(3) (2006 ed.), 602(a) (2006 ed., Supp. V).

See also §501 (2006 ed.) (authorizing infringement action).

App. 204–211. Kirtsaeng replied that the books he had 

acquired were “‘lawfully made’” and that he had acquired 

them legitimately. Record in No. 1:08–CV–7834–DCP 
 

 

6 KIRTSAENG v. JOHN WILEY & SONS, INC. 

Opinion of the Court 

(SDNY), Doc. 14, p. 3. Thus, in his view, §109(a)’s “first

sale” doctrine permitted him to resell or otherwise dispose

of the books without the copyright owner’s further permission. Id., at 2–3. 

The District Court held that Kirtsaeng could not assert

the “first sale” defense because, in its view, that doctrine 

does not apply to “foreign-manufactured goods” (even if 

made abroad with the copyright owner’s permission). App. 

to Pet. for Cert. 72a. The jury then found that Kirtsaeng

had willfully infringed Wiley’s American copyrights by 

selling and importing without authorization copies of eight 

of Wiley’s copyrighted titles. And it assessed statutory 

damages of $600,000 ($75,000 per work). 654 F. 3d, at 

215. 

On appeal, a split panel of the Second Circuit agreed

with the District Court. Id., at 222. It pointed out that

§109(a)’s “first sale” doctrine applies only to “the owner of 

a particular copy . . . lawfully made under this title.” Id., 

at 218–219 (emphasis added). And, in the majority’s view,

this language means that the “first sale” doctrine does not 

apply to copies of American copyrighted works manufactured abroad. Id., at 221. A dissenting judge thought that

the words “lawfully made under this title” do not refer “to 

a place of manufacture” but rather “focu[s] on whether a 

particular copy was manufactured lawfully under” America’s copyright statute, and that “the lawfulness of the 

manufacture of a particular copy should be judged by U. S.

copyright law.” Id., at 226 (opinion of Murtha, J.).

We granted Kirtsaeng’s petition for certiorari to consider this question in light of different views among the

Circuits. Compare id., at 221 (case below) (“first sale” 

doctrine does not apply to copies manufactured outside the

United States), with Omega S. A. v. Costco Wholesale 

Corp., 541 F. 3d 982, 986 (CA9 2008) (“first sale” doctrine

applies to copies manufactured outside the United States

only if an authorized first sale occurs within the United 
Cite as: 568 U. S. ____ (2013) 7 

Opinion of the Court 

States), aff ’d by an equally divided court, 562 U. S. ___ 

(2010), and Sebastian Int’l, Inc. v. Consumer Contacts 

(PTY) Ltd., 847 F. 2d 1093, 1098, n. 1 (CA3 1988) (limitation of the first sale doctrine to copies made within the 

United States “does not fit comfortably within the scheme

of the Copyright Act”). 

II 

We must decide whether the words “lawfully made 

under this title” restrict the scope of §109(a)’s “first sale” 

doctrine geographically. The Second Circuit, the Ninth 

Circuit, Wiley, and the Solicitor General (as amicus) all

read those words as imposing a form of geographical limitation. The Second Circuit held that they limit the “first

sale” doctrine to particular copies “made in territories in 

which the Copyright Act is law,” which (the Circuit says) 

are copies “manufactured domestically,” not “outside of the

United States.” 654 F. 3d, at 221–222 (emphasis added). 

Wiley agrees that those five words limit the “first sale” 

doctrine “to copies made in conformance with the [United 

States] Copyright Act where the Copyright Act is applicable,” which (Wiley says) means it does not apply to copies 

made “outside the United States” and at least not to “foreign production of a copy for distribution exclusively

abroad.” Brief for Respondent 15–16. Similarly, the

Solicitor General says that those five words limit the “first

sale” doctrine’s applicability to copies “‘made subject to

and in compliance with [the Copyright Act],’” which (the

Solicitor General says) are copies “made in the United

States.” Brief for United States as Amicus Curiae 5 

(hereinafter Brief for United States) (emphasis added).

And the Ninth Circuit has held that those words limit the 

“first sale” doctrine’s applicability (1) to copies lawfully 

made in the United States, and (2) to copies lawfully made 

outside the United States but initially sold in the United 

States with the copyright owner’s permission. Denbicare 
 

8 KIRTSAENG v. JOHN WILEY & SONS, INC. 

Opinion of the Court 

U. S. A. Inc. v. Toys “R” Us, Inc., 84 F. 3d 1143, 1149–1150 

(1996).

Under any of these geographical interpretations,

§109(a)’s “first sale” doctrine would not apply to the Wiley 

Asia books at issue here. And, despite an American copyright owner’s permission to make copies abroad, one who 

buys a copy of any such book or other copyrighted work—

whether at a retail store, over the Internet, or at a library

sale—could not resell (or otherwise dispose of) that particular copy without further permission. 

Kirtsaeng, however, reads the words “lawfully made

under this title” as imposing a non-geographical limitation. He says that they mean made “in accordance with” 

or “in compliance with” the Copyright Act. Brief for Petitioner 26. In that case, §109(a)’s “first sale” doctrine

would apply to copyrighted works as long as their manufacture met the requirements of American copyright law. 

In particular, the doctrine would apply where, as here, 

copies are manufactured abroad with the permission of the 

copyright owner. See §106 (referring to the owner’s right 

to authorize).

In our view, §109(a)’s language, its context, and the

common-law history of the “first sale” doctrine, taken

together, favor a non-geographical interpretation. We also 

doubt that Congress would have intended to create the

practical copyright-related harms with which a geographical interpretation would threaten ordinary scholarly,

artistic, commercial, and consumer activities. See Part II– 

D, infra. We consequently conclude that Kirtsaeng’s 

nongeographical reading is the better reading of the Act. 

A 

The language of §109(a) read literally favors Kirtsaeng’s

nongeographical interpretation, namely, that “lawfully

made under this title” means made “in accordance with” or 

“in compliance with” the Copyright Act. The language of 
 

 

Cite as: 568 U. S. ____ (2013) 9 

Opinion of the Court 

§109(a) says nothing about geography. The word “under” 

can mean “[i]n accordance with.” 18 Oxford English Dictionary 950 (2d ed. 1989). See also Black’s Law Dictionary 

1525 (6th ed. 1990) (“according to”). And a nongeographical interpretation provides each word of the five-word

phrase with a distinct purpose. The first two words of the 

phrase, “lawfully made,” suggest an effort to distinguish

those copies that were made lawfully from those that were

not, and the last three words, “under this title,” set forth 

the standard of “lawful[ness].” Thus, the nongeographical reading is simple, it promotes a traditional copyright

objective (combatting piracy), and it makes word-by-word 

linguistic sense.

The geographical interpretation, however, bristles with 

linguistic difficulties. It gives the word “lawfully” little, 

if any, linguistic work to do. (How could a book be unlawfully “made under this title”?) It imports geography into a 

statutory provision that says nothing explicitly about it. 

And it is far more complex than may at first appear. 

To read the clause geographically, Wiley, like the Second Circuit and the Solicitor General, must first emphasize the word “under.” Indeed, Wiley reads “under this 

title” to mean “in conformance with the Copyright Act 

where the Copyright Act is applicable.” Brief for Respondent 15. Wiley must then take a second step, arguing that 

the Act “is applicable” only in the United States. Ibid. 

And the Solicitor General must do the same. See Brief for 

United States 6 (“A copy is ‘lawfully made under this title’ 

if Title 17 governs the copy’s creation and the copy is made

in compliance with Title 17’s requirements”). See also 

post, at 7 (GINSBURG, J., dissenting) (“under” describes 

something “governed or regulated by another”).

One difficulty is that neither “under” nor any other 

word in the phrase means “where.” See, e.g., 18 Oxford 

English Dictionary, supra, at 947–952 (definition of “under”). It might mean “subject to,” see post, at 6, but as this 
 

10 KIRTSAENG v. JOHN WILEY & SONS, INC. 

Opinion of the Court 

Court has repeatedly acknowledged, the word evades a 

uniform, consistent meaning. See Kucana v. Holder, 558 

U. S. 233, 245 (2010) (“‘under’ is chameleon”); Ardestani v. 

INS, 502 U. S. 129, 135 (1991) (“under” has “many dictionary definitions” and “must draw its meaning from its

context”).

A far more serious difficulty arises out of the uncertainty and complexity surrounding the second step’s effort 

to read the necessary geographical limitation into the word

“applicable” (or the equivalent). Where, precisely, is the

Copyright Act “applicable”? The Act does not instantly 

protect an American copyright holder from unauthorized

piracy taking place abroad. But that fact does not mean 

the Act is inapplicable to copies made abroad. As a matter 

of ordinary English, one can say that a statute imposing,

say, a tariff upon “any rhododendron grown in Nepal” 

applies to all Nepalese rhododendrons. And, similarly,

one can say that the American Copyright Act is applicable 

to all pirated copies, including those printed overseas.

Indeed, the Act itself makes clear that (in the Solicitor 

General’s language) foreign-printed pirated copies are “sub

ject to” the Act. §602(a)(2) (2006 ed., Supp. V) (referring to importation of copies “the making of which either

constituted an infringement of copyright, or which would

have constituted an infringement of copyright if this title

had been applicable”); Brief for United States 5. See also 

post, at 6 (suggesting that “made under” may be read as

“subject to”). 

The appropriateness of this linguistic usage is underscored by the fact that §104 of the Act itself says that 

works “subject to protection under this title” include unpublished works “without regard to the nationality or 

domicile of the author,” and works “first published” in any 

one of the nearly 180 nations that have signed a copyright 

treaty with the United States. §§104(a), (b) (2006 ed.)

(emphasis added); §101 (2006 ed., Supp. V) (defining 

­
Cite as: 568 U. S. ____ (2013) 11 

Opinion of the Court 

“treaty party”); U. S. Copyright Office, Circular No. 38A,

International Copyright Relations of the United States 

(2010). Thus, ordinary English permits us to say that the

Act “applies” to an Irish manuscript lying in its author’s

Dublin desk drawer as well as to an original recording of 

a ballet performance first made in Japan and now on

display in a Kyoto art gallery. Cf. 4 M. Nimmer & D. 

Nimmer, Copyright §17.02, pp. 17–18, 17–19 (2012) (hereinafter Nimmer on Copyright) (noting that the principle that

“copyright laws do not have any extraterritorial operation”

“requires some qualification”). 

The Ninth Circuit’s geographical interpretation produces still greater linguistic difficulty. As we said, that Circuit interprets the “first sale” doctrine to cover both (1)

copies manufactured in the United States and (2) copies

manufactured abroad but first sold in the United States 

with the American copyright owner’s permission. Denbicare U. S. A., 84 F. 3d, at 1149–1150. See also Brief 

for Respondent 16 (suggesting that the clause at least 

excludes “the foreign production of a copy for distribution 

exclusively abroad”); id., at 51 (the Court need “not decide whether the copyright owner would be able to restrict

further distribution” in the case of “a downstream domestic purchaser of authorized imports”); Brief for Petitioner 

in Costco Wholesale Corp. v. Omega, S. A., O. T. 2010, 

No. 08–1423, p. 12 (excepting imported copies “made by

unrelated foreign copyright holders” (emphasis deleted)).

We can understand why the Ninth Circuit may have

thought it necessary to add the second part of its definition. As we shall later describe, see Part II–D, infra, 

without some such qualification a copyright holder could 

prevent a buyer from domestically reselling or even giving 

away copies of a video game made in Japan, a film made

in Germany, or a dress fabric (with a design copyright) made

in China, even if the copyright holder has granted permission for the foreign manufacture, importation, and an initial 
 

12 KIRTSAENG v. JOHN WILEY & SONS, INC. 

Opinion of the Court 

domestic sale of the copy. A publisher such as Wiley 

would be free to print its books abroad, allow their importation and sale within the United States, but prohibit 

students from later selling their used texts at a campus 

bookstore. We see no way, however, to reconcile this halfgeographical/half-nongeographical interpretation with the 

language of the phrase, “lawfully made under this title.”

As a matter of English, it would seem that those five

words either do cover copies lawfully made abroad or they 

do not. 

In sum, we believe that geographical interpretations

create more linguistic problems than they resolve. And 

considerations of simplicity and coherence tip the purely

linguistic balance in Kirtsaeng’s, nongeographical, favor. 

B 

Both historical and contemporary statutory context indicate that Congress, when writing the present version of 

§109(a), did not have geography in mind. In respect to

history, we compare §109(a)’s present language with the

language of its immediate predecessor. That predecessor 

said: 

“[N]othing in this Act shall be deemed to forbid, prevent, or restrict the transfer of any copy of a copyrighted work the possession of which has been lawfully 

obtained.” Copyright Act of 1909, §41, 35 Stat. 1084 

(emphasis added). 

See also Copyright Act of 1947, §27, 61 Stat. 660. The 

predecessor says nothing about geography (and Wiley does

not argue that it does). So we ask whether Congress, in

changing its language implicitly introduced a geographical limitation that previously was lacking. See also Part 

II–C, infra (discussing 1909 codification of common-law 

principle).

A comparison of language indicates that it did not. The 
 

Cite as: 568 U. S. ____ (2013) 13 

Opinion of the Court 

predecessor says that the “first sale” doctrine protects “the

transfer of any copy the possession of which has been 

lawfully obtained.” The present version says that “the 

owner of a particular copy or phonorecord lawfully made

under this title is entitled to sell or otherwise dispose of

the possession of that copy or phonorecord.” What does 

this change in language accomplish?

The language of the former version referred to those 

who are not owners of a copy, but mere possessors who 

“lawfully obtained” a copy. The present version covers 

only those who are owners of a “lawfully made” copy. 

Whom does the change leave out? Who might have lawfully obtained a copy of a copyrighted work but not owned 

that copy? One answer is owners of movie theaters, who 

during the 1970’s (and before) often leased films from 

movie distributors or filmmakers. See S. Donahue, 

American Film Distribution 134, 177 (1987) (describing 

producer-distributer and distributer-exhibitor agreements);

Note, The Relationship Between Motion Picture Distribution and Exhibition: An Analysis of the Effects of AntiBlind Bidding Legislation, 9 Comm/Ent. L. J. 131, 135 

(1986). Because the theater owners had “lawfully obtained” their copies, the earlier version could be read as 

allowing them to sell that copy, i.e., it might have given

them “first sale” protection. Because the theater owners 

were lessees, not owners, of their copies, the change in

language makes clear that they (like bailees and other 

lessees) cannot take advantage of the “first sale” doctrine.

(Those who find legislative history useful will find confirmation in, e.g., House Committee on the Judiciary, Copyright Law Revision, Supplementary Report of the Register

of Copyrights on the General Revision of the U. S. Copyright Law: 1965 Revision Bill, 89th Cong., 1st Sess., pt. 

6, p. 30 (Comm. Print 1965) (hereinafter Copyright Law 

Revision) (“[W]here a person has rented a print of a motion picture from the copyright owner, he would have no 
 

14 KIRTSAENG v. JOHN WILEY & SONS, INC. 

Opinion of the Court 

right to lend, rent, sell, or otherwise dispose of the print

without first obtaining the copyright owner’s permission”). 

See also Platt & Munk Co. v. Republic Graphics, Inc., 

315 F. 2d 847, 851 (CA2 1963) (Friendly, J.) (pointing out 

predecessor statute’s leasing problem)).

This objective perfectly well explains the new language

of the present version, including the five words here at 

issue. Section 109(a) now makes clear that a lessee of 

a copy will not receive “first sale” protection but one who 

owns a copy will receive “first sale” protection, provided, of 

course, that the copy was “lawfully made” and not pirated. The new language also takes into account that a

copy may be “lawfully made under this title” when the copy, 

say of a phonorecord, comes into its owner’s possession 

through use of a compulsory license, which “this title”

provides for elsewhere, namely, in §115. Again, for those

who find legislative history useful, the relevant legislative

report makes this clear. H. R. Rep. No. 94–1476, p. 79

(1976) (“For example, any resale of an illegally ‘pirated’ 

phonorecord would be an infringement, but the disposition

of a phonorecord legally made under the compulsory licensing provisions of section 115 would not”). 

Other provisions of the present statute also support 

a nongeographical interpretation. For one thing, the statute phases out the “manufacturing clause,” a clause that 

appeared in earlier statutes and had limited importation 

of many copies (of copyrighted works) printed outside the 

United States. §601, 90 Stat. 2588 (“Prior to July 1, 1982

. . . the importation into or public distribution in the 

United States of copies of a work consisting preponderantly 

of nondramatic literary material . . . is prohibited unless

the portions consisting of such material have been manufactured in the United States or Canada”). The phasing out 

of this clause sought to equalize treatment of copies manufactured in America and copies manufactured abroad. See 

H. R. Rep. No. 94–1476, at 165–166. 
Cite as: 568 U. S. ____ (2013) 15 

Opinion of the Court 

The “equal treatment” principle, however, is difficult 

to square with a geographical interpretation of the “first 

sale” clause that would grant the holder of an American

copyright (perhaps a foreign national, see supra, at 10) 

permanent control over the American distribution chain

(sales, resales, gifts, and other distribution) in respect to

copies printed abroad but not in respect to copies printed 

in America. And it is particularly difficult to believe that 

Congress would have sought this unequal treatment while

saying nothing about it and while, in a related clause (the

manufacturing phase-out), seeking the opposite kind of 

policy goal. Cf. Golan v. Holder, 565 U. S. ___, ___ (2012) 

(slip op., at 30) (Congress has moved from a copyright 

regime that, prior to 1891, entirely excluded foreign works

from U. S. copyright protection to a regime that now “ensure[s] that most works, whether foreign or domestic, 

would be governed by the same legal regime” (emphasis

added)).

Finally, we normally presume that the words “lawfully 

made under this title” carry the same meaning when they

appear in different but related sections. Department of 

Revenue of Ore. v. ACF Industries, Inc., 510 U. S. 332, 

342 (1994). But doing so here produces surprising consequences. Consider: 

(1) Section 109(c) says that, despite the copyright owner’s exclusive right “to display” a copyrighted work

(provided in §106(5)), the owner of a particular copy “lawfully made under this title” may publicly display it without further authorization. To interpret these words 

geographically would mean that one who buys a copyrighted work of art, a poster, or even a bumper sticker,

in Canada, in Europe, in Asia, could not display 

it in America without the copyright owner’s further

authorization. 
 

 

 

16 KIRTSAENG v. JOHN WILEY & SONS, INC. 

Opinion of the Court 

(2) Section 109(e) specifically provides that the owner 

of a particular copy of a copyrighted video arcade game 

“lawfully made under this title” may “publicly perform

or display that game in coin-operated equipment” without the authorization of the copyright owner. To interpret these words geographically means that an arcade 

owner could not (“without the authority of the copyright

owner”) perform or display arcade games (whether new 

or used) originally made in Japan. Cf. Red BaronFranklin Park, Inc. v. Taito Corp., 883 F. 2d 275 (CA4 

1989). 

(3) Section 110(1) says that a teacher, without the copyright owner’s authorization, is allowed to perform or

display a copyrighted work (say, an audiovisual work) 

“in the course of face-to-face teaching activities”—unless 

the teacher knowingly used “a copy that was not lawfully made under this title.” To interpret these words

geographically would mean that the teacher could not 

(without further authorization) use a copy of a film during class if the copy was lawfully made in Canada, Mexico, Europe, Africa, or Asia. 

(4) In its introductory sentence, §106 provides the Act’s

basic exclusive rights to an “owner of a copyright under

this title.” The last three words cannot support a geographic interpretation. 

Wiley basically accepts the first three readings, but argues that Congress intended the restrictive consequences. 

And it argues that context simply requires that the words

of the fourth example receive a different interpretation.

Leaving the fourth example to the side, we shall explain in 

Part II–D, infra, why we find it unlikely that Congress

would have intended these, and other related consequences. 
Cite as: 568 U. S. ____ (2013) 17 

Opinion of the Court 

C 

A relevant canon of statutory interpretation favors a 

nongeographical reading. “[W]hen a statute covers an issue previously governed by the common law,” we must presume that “Congress intended to retain the substance of

the common law.” Samantar v. Yousuf, 560 U. S. ___, 

___, n. 13 (2010) (slip op., at 14, n. 13). See also 

Isbrandtsen Co. v. Johnson, 343 U. S. 779, 783 (1952) 

(“Statutes which invade the common law . . . are to be read 

with a presumption favoring the retention of longestablished and familiar principles, except when a statutory purpose to the contrary is evident”).

The “first sale” doctrine is a common-law doctrine with 

an impeccable historic pedigree. In the early 17th century

Lord Coke explained the common law’s refusal to permit

restraints on the alienation of chattels. Referring to Littleton, who wrote in the 15th century, Gray, Two Contributions to Coke Studies, 72 U. Chi. L. Rev. 1127, 1135 

(2005), Lord Coke wrote: 

“[If] a man be possessed of . . . a horse, or of any other

chattell . . . and give or sell his whole interest . . .

therein upon condition that the Donee or Vendee shall

not alien[ate] the same, the [condition] is voi[d], because his whole interest . . . is out of him, so as he 

hath no possibilit[y] of a Reverter, and it is against 

Trade and Traffi[c], and bargaining and contracting

betwee[n] man and man: and it is within the reason of

our Author that it should ouster him of all power 

given to him.” 1 E. Coke, Institutes of the Laws of 

England §360, p. 223 (1628). 

A law that permits a copyright holder to control the 

resale or other disposition of a chattel once sold is similarly “against Trade and Traffi[c], and bargaining and contracting.” Ibid. 

With these last few words, Coke emphasizes the im­
 

 

18 KIRTSAENG v. JOHN WILEY & SONS, INC. 

Opinion of the Court 

portance of leaving buyers of goods free to compete with 

each other when reselling or otherwise disposing of those 

goods. American law too has generally thought that competition, including freedom to resell, can work to the advantage of the consumer. See, e.g., Leegin Creative Leather 

Products, Inc. v. PSKS, Inc., 551 U. S. 877, 886 (2007) 

(restraints with “manifestly anticompetitive effects” are 

per se illegal; others are subject to the rule of reason 

(internal quotation marks omitted)); 1 P. Areeda & H.

Hovenkamp, Antitrust Law ¶100, p. 4 (3d ed. 2006) 

(“[T]he principal objective of antitrust policy is to maximize 

consumer welfare by encouraging firms to behave 

competitively”).

The “first sale” doctrine also frees courts from the administrative burden of trying to enforce restrictions upon 

difficult-to-trace, readily movable goods. And it avoids the 

selective enforcement inherent in any such effort. Thus, it 

is not surprising that for at least a century the “first sale”

doctrine has played an important role in American copyright law. See Bobbs-Merrill Co. v. Straus, 210 U. S. 339 

(1908); Copyright Act of 1909, §41, 35 Stat. 1084. See also 

Copyright Law Revision, Further Discussions and Comments on Preliminary Draft for Revised U. S. Copyright 

Law, 88th Cong., 2d Sess., pt. 4, p. 212 (Comm. Print 

1964) (Irwin Karp of Authors’ League of America expressing concern for “the very basic concept of copyright law 

that, once you’ve sold a copy legally, you can’t restrict its

resale”).

The common-law doctrine makes no geographical distinctions; nor can we find any in Bobbs-Merrill (where

this Court first applied the “first sale” doctrine) or in

§109(a)’s predecessor provision, which Congress enacted a year

later. See supra, at 12. Rather, as the Solicitor General 

acknowledges, “a straightforward application of BobbsMerrill” would not preclude the “first sale” defense from 

applying to authorized copies made overseas. Brief for 
 

Cite as: 568 U. S. ____ (2013) 19 

Opinion of the Court 

United States 27. And we can find no language, context,

purpose, or history that would rebut a “straightforward 

application” of that doctrine here.

The dissent argues that another principle of statutory 

interpretation works against our reading, and points out

that elsewhere in the statute Congress used different 

words to express something like the non-geographical 

reading we adopt. Post, at 8–9 (quoting §602(a)(2) (prohibiting the importation of copies “the making of which either

constituted an infringement of copyright, or which would

have constituted an infringement of copyright if this title

had been applicable” (emphasis deleted))). Hence, Congress, the dissent believes, must have meant §109(a)’s

different language to mean something different (such as

the dissent’s own geographical interpretation of §109(a)).

We are not aware, however, of any canon of interpretation

that forbids interpreting different words used in different

parts of the same statute to mean roughly the same thing. 

Regardless, were there such a canon, the dissent’s interpretation of §109(a) would also violate it. That is because 

Congress elsewhere in the 1976 Act included the words 

“manufactured in the United States or Canada,” 90 Stat. 

2588, which express just about the same geographical 

thought that the dissent reads into §109(a)’s very different 

language. 

D 

Associations of libraries, used-book dealers, technology 

companies, consumer-goods retailers, and museums point 

to various ways in which a geographical interpretation 

would fail to further basic constitutional copyright objectives, in particular “promot[ing] the Progress of Science 

and useful Arts.” U. S. Const., Art. I, §8, cl. 8.

The American Library Association tells us that library 

collections contain at least 200 million books published 

abroad (presumably, many were first published in one of 
 

 

20 KIRTSAENG v. JOHN WILEY & SONS, INC. 

Opinion of the Court 

the nearly 180 copyright-treaty nations and enjoy American copyright protection under 17 U. S. C. §104, see supra, 

at 10); that many others were first published in the United

States but printed abroad because of lower costs; and 

that a geographical interpretation will likely require the libraries to obtain permission (or at least create significant

uncertainty) before circulating or otherwise distributing

these books. Brief for American Library Association et al. 

as Amici Curiae 4, 15–20. Cf. id., at 16–20, 28 (discussing

limitations of potential defenses, including the fair use 

and archival exceptions, §§107–108). See also Library and

Book Trade Almanac 511 (D. Bogart ed., 55th ed. 2010) 

(during 2000–2009 “a significant amount of book printing 

moved to foreign nations”).

How, the American Library Association asks, are the 

libraries to obtain permission to distribute these millions 

of books? How can they find, say, the copyright owner of 

a foreign book, perhaps written decades ago? They may

not know the copyright holder’s present address. Brief for 

American Library Association 15 (many books lack indication of place of manufacture; “no practical way to learn 

where [a] book was printed”). And, even where addresses 

can be found, the costs of finding them, contacting owners,

and negotiating may be high indeed. Are the libraries to 

stop circulating or distributing or displaying the millions

of books in their collections that were printed abroad?

Used-book dealers tell us that, from the time when 

Benjamin Franklin and Thomas Jefferson built commercial and personal libraries of foreign books, American 

readers have bought used books published and printed 

abroad. Brief for Powell’s Books Inc. et al. as Amici 

Curiae 7 (citing M. Stern, Antiquarian Bookselling in the

United States (1985)). The dealers say that they have 

“operat[ed] . . . for centuries” under the assumption that

the “first sale” doctrine applies. Brief for Powell’s Books 7. 

But under a geographical interpretation a contemporary 
Cite as: 568 U. S. ____ (2013) 21 

Opinion of the Court 

tourist who buys, say, at Shakespeare and Co. (in Paris), a 

dozen copies of a foreign book for American friends might 

find that she had violated the copyright law. The usedbook dealers cannot easily predict what the foreign copyright holder may think about a reader’s effort to sell a 

used copy of a novel. And they believe that a geographical 

interpretation will injure a large portion of the used-book 

business. 

Technology companies tell us that “automobiles, microwaves, calculators, mobile phones, tablets, and personal

computers” contain copyrightable software programs or

packaging. Brief for Public Knowledge et al. as Amici 

Curiae 10. See also Brief for Association of Service and 

Computer Dealers International, Inc., et al. as Amici 

Curiae 2. Many of these items are made abroad with the 

American copyright holder’s permission and then sold 

and imported (with that permission) to the United States. 

Brief for Retail Litigation Center, Inc., et al. as Amici 

Curiae 4. A geographical interpretation would prevent the 

resale of, say, a car, without the permission of the holder 

of each copyright on each piece of copyrighted automobile

software. Yet there is no reason to believe that foreign

auto manufacturers regularly obtain this kind of permission from their software component suppliers, and Wiley

did not indicate to the contrary when asked. See Tr. of 

Oral Arg. 29–30. Without that permission a foreign car

owner could not sell his or her used car. 

Retailers tell us that over $2.3 trillion worth of foreign goods were imported in 2011. Brief for Retail Litigation Center 8. American retailers buy many of these goods 

after a first sale abroad. Id., at 12. And, many of these

items bear, carry, or contain copyrighted “packaging,

logos, labels, and product inserts and instructions for [the 

use of] everyday packaged goods from floor cleaners and 

health and beauty products to breakfast cereals.” Id., at 

10–11. The retailers add that American sales of more 
 

 

22 KIRTSAENG v. JOHN WILEY & SONS, INC. 

Opinion of the Court 

traditional copyrighted works, “such as books, recorded

music, motion pictures, and magazines” likely amount to

over $220 billion. Id., at 9. See also id., at 10 (electronic

game industry is $16 billion). A geographical interpretation would subject many, if not all, of them to the disruptive impact of the threat of infringement suits. Id., at 12. 

Art museum directors ask us to consider their efforts to 

display foreign-produced works by, say, Cy Twombly, René 

Magritte, Henri Matisse, Pablo Picasso, and others. See 

supra, at 10 (describing how §104 often makes such works 

“subject to” American copyright protection). A geographical interpretation, they say, would require the museums

to obtain permission from the copyright owners before

they could display the work, see supra, at 15—even if the 

copyright owner has already sold or donated the work to

a foreign museum. Brief for Association of Art Museum 

Directors et al. as Amici Curiae 10–11. What are the 

museums to do, they ask, if the artist retained the copyright, if the artist cannot be found, or if a group of heirs is

arguing about who owns which copyright? Id., at 14. 

These examples, and others previously mentioned, help

explain why Lord Coke considered the “first sale” doctrine 

necessary to protect “Trade and Traffi[c], and bargaining

and contracting,” and they help explain why American 

copyright law has long applied that doctrine. Cf. supra, at 

17–18. 

Neither Wiley nor any of its many amici deny that a

geographical interpretation could bring about these “horribles”—at least in principle. Rather, Wiley essentially

says that the list is artificially invented. Brief for Respondent 51–52. It points out that a federal court first

adopted a geographical interpretation more than 30 years 

ago. CBS, Inc. v. Scorpio Music Distributors, Inc., 569 F. 

Supp. 47, 49 (ED Pa. 1983), summarily aff ’d, 738 F. 2d 

424 (CA3 1984) (table). Yet, it adds, these problems have 

not occurred. Why not? Because, says Wiley, the prob­
 

Cite as: 568 U. S. ____ (2013) 23 

Opinion of the Court 

lems and threats are purely theoretical; they are unlikely 

to reflect reality. See also post, at 30–31. 

We are less sanguine. For one thing, the law has not

been settled for long in Wiley’s favor. The Second Circuit, 

in its decision below, is the first Court of Appeals to adopt 

a purely geographical interpretation. The Third Circuit 

has favored a nongeographical interpretation. Sebastian 

Int’l, 847 F. 2d 1093. The Ninth Circuit has favored a 

modified geographical interpretation with a nongeographical (but textually unsustainable) corollary designed to 

diminish the problem. Denbicare U. S. A., 84 F. 3d 1143. 

See supra, at 11–12. And other courts have hesitated to 

adopt, and have cast doubt upon, the validity of the geographical interpretation. Pearson Educ., Inc. v. Liu, 656 

F. Supp. 2d 407 (SDNY 2009); Red-Baron Franklin Park, 

Inc. v. Taito Corp., No. 88–0156–A, 1988 WL 167344, *3 

(ED Va. 1988), rev’d on other grounds, 883 F. 2d 275 (CA4 

1989).

For another thing, reliance upon the “first sale” doctrine

is deeply embedded in the practices of those, such as booksellers, libraries, museums, and retailers, who have long

relied upon its protection. Museums, for example, are 

not in the habit of asking their foreign counterparts to 

check with the heirs of copyright owners before sending, 

e.g., a Picasso on tour. Brief for Association of Art Museum Directors 11–12. That inertia means a dramatic 

change is likely necessary before these institutions, instructed by their counsel, would begin to engage in the

complex permission-verifying process that a geographical 

interpretation would demand. And this Court’s adoption

of the geographical interpretation could provide that

dramatic change. These intolerable consequences (along

with the absurd result that the copyright owner can exercise downstream control even when it authorized the 

import or first sale) have understandably led the Ninth

Circuit, the Solicitor General as amicus, and the dissent to 
 

 

24 KIRTSAENG v. JOHN WILEY & SONS, INC. 

Opinion of the Court 

adopt textual readings of the statute that attempt to

mitigate these harms. Brief for United States 27–28; 

post, at 24–28. But those readings are not defensible, for 

they require too many unprecedented jumps over linguistic and other hurdles that in our view are insurmountable. 

See, e.g., post, at 26 (acknowledging that its reading of 

§106(3) “significantly curtails the independent effect of 

§109(a)”).

Finally, the fact that harm has proved limited so far

may simply reflect the reluctance of copyright holders so

far to assert geographically based resale rights. They may

decide differently if the law is clarified in their favor. 

Regardless, a copyright law that can work in practice only

if unenforced is not a sound copyright law. It is a law that 

would create uncertainty, would bring about selective

enforcement, and, if widely unenforced, would breed disrespect for copyright law itself. 

Thus, we believe that the practical problems that petitioner and his amici have described are too serious, too 

extensive, and too likely to come about for us to dismiss

them as insignificant—particularly in light of the evergrowing importance of foreign trade to America. See 

The World Bank, Imports of goods and services (% of 

GDP) (imports in 2011 18% of U. S. gross domestic 

product compared to 11% in 1980), online at http://

data.worldbank.org/indicator/NE.IMP.GNFS.ZS? (as visited 

Mar. 15, 2013, and available in Clerk of Court’s case file).

The upshot is that copyright-related consequences along 

with language, context, and interpretive canons argue

strongly against a geographical interpretation of §109(a). 

III 

Wiley and the dissent make several additional important arguments in favor of the geographical interpretation. 

First, they say that our Quality King decision strongly

supports its geographical interpretation. In that case 
 

 

 

Cite as: 568 U. S. ____ (2013) 25 

Opinion of the Court 

we asked whether the Act’s “importation provision,” now 

§602(a)(1) (then §602(a)), barred importation (without 

permission) of a copyrighted item (labels affixed to hair 

care products) where an American copyright owner authorized the first sale and export of hair care products

with copyrighted labels made in the United States, and

where a buyer sought to import them back into the United 

States without the copyright owner’s permission. 523 

U. S., at 138–139. 

We held that the importation provision did not prohibit

sending the products back into the United States (without

the copyright owner’s permission). That section says: 

“Importation into the United States, without the authority of the owner of copyright under this title, of 

copies or phonorecords of a work that have been

acquired outside the United States is an infringement

of the exclusive right to distribute copies or phonorecords under section 106.” 17 U. S. C. §602(a)(1) 

(2006 ed., Supp. V) (emphasis added). See also 

§602(a) (1994 ed.). 

We pointed out that this section makes importation an

infringement of the “exclusive right to distribute . . . under 

106.” We noted that §109(a)’s “first sale” doctrine limits 

the scope of the §106 exclusive distribution right. We took 

as given the fact that the products at issue had at least 

once been sold. And we held that consequently, importation of the copyrighted labels does not violate §602(a)(1).

523 U. S., at 145. 

In reaching this conclusion we endorsed Bobbs-Merrill 

and its statement that the copyright laws were not “intended to create a right which would permit the holder of 

the copyright to fasten, by notice in a book . . . a restriction

upon the subsequent alienation of the subject-matter of 

copyright after the owner had parted with the title to one 

who had acquired full dominion over it.” 210 U. S., at 
 

 

26 KIRTSAENG v. JOHN WILEY & SONS, INC. 

Opinion of the Court 

349–350. 

We also explained why we rejected the claim that our 

interpretation would make §602(a)(1) pointless. Those 

advancing that claim had pointed out that the 1976 Copyright Act amendments retained a prior anti-piracy provision, prohibiting the importation of pirated copies. Quality King, supra, at 146. Thus, they said, §602(a)(1) must 

prohibit the importation of lawfully made copies, for to

allow the importation of those lawfully made copies after a 

first sale, as Quality King’s holding would do, would leave 

§602(a)(1) without much to prohibit. It would become 

superfluous, without any real work to do. 

We do not believe that this argument is a strong one.

Under Quality King’s interpretation, §602(a)(1) would still 

forbid importing (without permission, and subject to the

exceptions in §602(a)(3)) copies lawfully made abroad, for 

example, where (1) a foreign publisher operating as the 

licensee of an American publisher prints copies of a book 

overseas but, prior to any authorized sale, seeks to send 

them to the United States; (2) a foreign printer or other

manufacturer (if not the “owner” for purposes of §109(a), 

e.g., before an authorized sale) sought to send copyrighted 

goods to the United States; (3) “a book publisher transports copies to a wholesaler” and the wholesaler (not yet 

the owner) sends them to the United States, see Copyright 

Law Revision, pt. 4, at 211 (giving this example); or (4) 

a foreign film distributor, having leased films for distribution, or any other licensee, consignee, or bailee sought to

send them to the United States. See, e.g., 2 Nimmer on 

Copyright §8.12[B][1][a], at 8–159 (“Section 109(a) provides that the distribution right may be exercised solely

with respect to the initial disposition of copies of a work, 

not to prevent or restrict the resale or other further transfer of possession of such copies”). These examples show

that §602(a)(1) retains significance. We concede it has less 

significance than the dissent believes appropriate, but the 
Cite as: 568 U. S. ____ (2013) 27 

Opinion of the Court 

dissent also adopts a construction of §106(3) that “significantly curtails” §109(a)’s effect, post, at 26, and so limits 

the scope of that provision to a similar, or even greater,

degree.

In Quality King we rejected the “superfluous” argument

for similar reasons. But, when rejecting it, we said that,

where an author gives exclusive American distribution

rights to an American publisher and exclusive British 

distribution rights to a British publisher, “presumably 

only those [copies] made by the publisher of the United 

States edition would be ‘lawfully made under this title’ 

within the meaning of §109(a).” 523 U. S., at 148 (emphasis added). Wiley now argues that this phrase in the 

Quality King opinion means that books published abroad 

(under license) must fall outside the words “lawfully made 

under this title” and that we have consequently already 

given those words the geographical interpretation that it 

favors. 

We cannot, however, give the Quality King statement 

the legal weight for which Wiley argues. The language

“lawfully made under this title” was not at issue in Quality King; the point before us now was not then fully argued; 

we did not canvas the considerations we have here set 

forth; we there said nothing to suggest that the example 

assumes a “first sale”; and we there hedged our statement with the word “presumably.” Most importantly, the 

statement is pure dictum. It is dictum contained in a 

rebuttal to a counterargument. And it is unnecessary 

dictum even in that respect. Is the Court having once

written dicta calling a tomato a vegetable bound to deny 

that it is a fruit forever after? 

To the contrary, we have written that we are not necessarily bound by dicta should more complete argument

demonstrate that the dicta is not correct. Central Va. 

Community College v. Katz, 546 U. S. 356, 363 (2006) 

(“[W]e are not bound to follow our dicta in a prior case in 
 

28 KIRTSAENG v. JOHN WILEY & SONS, INC. 

Opinion of the Court 

which the point now at issue was not fully debated”); 

Humphrey’s Executor v. United States, 295 U. S. 602, 

627–628 (1935) (rejecting, under stare decisis, dicta, “which 

may be followed if sufficiently persuasive but which are 

not controlling”). And, given the bit part that our Quality 

King statement played in our Quality King decision, we 

believe the view of stare decisis set forth in these opinions

applies to the matter now before us. 

Second, Wiley and the dissent argue (to those who consider legislative history) that the Act’s legislative history 

supports their interpretation. But the historical events to 

which it points took place more than a decade before the

enactment of the Act and, at best, are inconclusive. 

During the 1960’s, representatives of book, record, and 

film industries, meeting with the Register of Copyrights to

discuss copyright revision, complained about the difficulty

of dividing international markets. Copyright Law Revi

sion Discussion and Comments on Report of the Register

of Copyrights on the General Revision of the U. S. Copyright Law, 88th Cong., 1st Sess., pt. 2, p. 212 (Comm.

Print 1963) (English editions of “particular” books “fin[d]” 

their “way into this country”); id., at 213 (works “publi[shed] in a country where there is no copyright protection

of any sort” are put into “the free stream of commerce” and

“shipped to the United States”); ibid. (similar concern in 

respect to films).

The then-Register of Copyrights, Abraham Kaminstein,

found these examples “very troubl[ing].” Ibid. And the 

Copyright Office released a draft provision that it said

“deals with the matter of the importation for distribution 

in the United States of foreign copies that were made

under proper authority but that, if sold in the United 

States, would be sold in contravention of the rights of the

copyright owner who holds the exclusive right to sell

copies in the United States.” Id., pt. 4, at 203. That draft 

version, without reference to §106, simply forbids unau­

­
 

Cite as: 568 U. S. ____ (2013) 29 

Opinion of the Court 

thorized imports. It said: 

“Importation into the United States of copies or records of a work for the purpose of distribution to the 

public shall, if such articles are imported without the 

authority of the owner of the exclusive right to distribute copies or records under this title, constitute an 

infringement of copyright actionable under section 35 

[17 U. S. C. §501].” Id., Preliminary Draft for Revised 

U. S. Copyright Law and Discussions and Comments, 

88th Cong., 2d Sess., pt. 3, pp. 32–33 (Comm. Print 

1964). 

In discussing the draft, some of those present expressed 

concern about its effect on the “first sale” doctrine. For 

example, Irwin Karp, representing the Authors League 

of America asked, “If a German jobber lawfully buys copies from a German publisher, are we not running into the

problem of restricting his transfer of his lawfully obtained

copies?” Id., pt. 4, at 211. The Copyright Office representative replied, “This could vary from one situation to

another, I guess. I should guess, for example, that if 

a book publisher transports [i.e., does not sell] copies to a 

wholesaler [i.e., a nonowner], this is not yet the kind of 

transaction that exhausts the right to control disposition.” 

Ibid. (emphasis added). 

The Office later withdrew the draft, replacing it with a 

draft, which, by explicitly referring to §106, was similar to

the provision that became law, now §602(a)(1). The Office 

noted in a report that, under the new draft, importation of 

a copy (without permission) “would violate the exclusive

rights of the U. S. copyright owner . . . where the copyright

owner had authorized the making of copies in a foreign 

country for distribution only in that country.” Id., pt. 6, at

150. 

Still, that part of the report says nothing about the “first

sale” doctrine, about §109(a), or about the five words, 
 

 

 

30 KIRTSAENG v. JOHN WILEY & SONS, INC. 

Opinion of the Court 

“lawfully made under this title.” And neither the report

nor its accompanying 1960’s draft answers the question

before us here. Cf. Quality King, 523 U. S., at 145 (without those five words, the import clause, via its reference to

§106, imports the “first sale” doctrine). 

But to ascertain the best reading of §109(a), rather 

than dissecting the remarks of industry representatives

concerning §602 at congressional meetings held 10 years

before the statute was enacted, see post, at 13–16, we 

would give greater weight to the congressional report

accompanying §109(a), written a decade later when Congress passed the new law. That report says: 

“Section 109(a) restates and confirms the principle 

that, where the copyright owner has transferred ownership of a particular copy or phonorecord of a work, 

the person to whom the copy or phonorecord is transferred is entitled to dispose of it by sale, rental, or any 

other means. Under this principle, which has been

established by the court decisions and . . . the present 

law, the copyright owner’s exclusive right of public 

distribution would have no effect upon anyone who 

owns ‘a particular copy or phonorecord lawfully made

under this title’ and who wishes to transfer it to 

someone else or to destroy it. 

. . . . . 

“To come within the scope of section 109(a), a copy

or phonorecord must have been ‘lawfully made under

this title,’ though not necessarily with the copyright

owner’s authorization. For example, any resale of an

illegally ‘pirated’ phonorecord would be an infringement but the disposition of a phonorecord legally 

made under the compulsory licensing provisions of

section 115 would not.” H. R. Rep. No. 94–1476, at 79 

(emphasis added). 
Cite as: 568 U. S. ____ (2013) 31 

Opinion of the Court 

Accord, S. Rep. No. 94–473, pp. 71–72 (1975). 

This history reiterates the importance of the “first sale” 

doctrine. See, e.g., Copyright Law Revision, 1964 Revision

Bill with Discussions and Comments, 89th Cong., 1st

Sess., pt. 5, p. 66 (Comm. Print 1965) (“[F]ull ownership of 

a lawfully-made copy authorizes its owner to dispose of 

it freely”). It explains, as we have explained, the nongeographical purposes of the words “lawfully made under this

title.” Part II–B, supra. And it says nothing about geography. Nor, importantly, did §109(a)’s predecessor provision. See supra, at 12. This means that, contrary to the

dissent’s suggestion, any lack of legislative history pertaining to the “first sale” doctrine only tends to bolster 

our position that Congress’ 1976 revision did not intend to

create a drastic geographical change in its revision to that

provision. See post, at 18, n. 13. We consequently believe

that the legislative history, on balance, supports the nongeographical interpretation. 

Third, Wiley and the dissent claim that a nongeographical interpretation will make it difficult, perhaps impossible, for publishers (and other copyright holders) to divide

foreign and domestic markets. We concede that is so. A 

publisher may find it more difficult to charge different 

prices for the same book in different geographic markets. 

But we do not see how these facts help Wiley, for we can 

find no basic principle of copyright law that suggests that

publishers are especially entitled to such rights. 

The Constitution describes the nature of American 

copyright law by providing Congress with the power to

“secur[e]” to “[a]uthors” “for limited [t]imes” the “exclusive 

[r]ight to their . . . [w]ritings.” Art. I, §8, cl. 8. The Founders, too, discussed the need to grant an author a limited

right to exclude competition. Compare Letter from Thomas 

Jefferson to James Madison (July 31, 1788), in 13

Papers of Thomas Jefferson 440, 442–443 (J. Boyd ed. 1956)

(arguing against any monopoly) with Letter from James 
 

 

32 KIRTSAENG v. JOHN WILEY & SONS, INC. 

Opinion of the Court 

Madison to Thomas Jefferson (Oct. 17, 1788), in 14 id., at 

16, 21 (J. Boyd ed. 1958) (arguing for a limited monopoly 

to secure production). But the Constitution’s language

nowhere suggests that its limited exclusive right should 

include a right to divide markets or a concomitant right 

to charge different purchasers different prices for the same

book, say to increase or to maximize gain. Neither, to our 

knowledge, did any Founder make any such suggestion.

We have found no precedent suggesting a legal preference 

for interpretations of copyright statutes that would provide for market divisions. Cf. Copyright Law Revision, pt. 

2, at 194 (statement of Barbara Ringer, Copyright Office) 

(division of territorial markets was “primarily a matter of 

private contract”).

To the contrary, Congress enacted a copyright law that

(through the “first sale” doctrine) limits copyright holders’

ability to divide domestic markets. And that limitation is 

consistent with antitrust laws that ordinarily forbid market divisions. Cf. Palmer v. BRG of Ga., Inc., 498 U. S. 46, 

49–50 (1990) (per curiam) (“[A]greements between competitors to allocate territories to minimize competition are

illegal”). Whether copyright owners should, or should

not, have more than ordinary commercial power to divide 

international markets is a matter for Congress to decide. 

We do no more here than try to determine what decision

Congress has taken. 

Fourth, the dissent and Wiley contend that our decision 

launches United States copyright law into an unprecedented regime of “international exhaustion.” Post, at 18– 

23; Brief for Respondent 45–46. But they point to nothing 

indicative of congressional intent in 1976. The dissent 

also claims that it is clear that the United States now 

opposes adopting such a regime, but the Solicitor General 

as amicus has taken no such position in this case. In fact, 

when pressed at oral argument, the Solicitor General

stated that the consequences of Wiley’s reading of the 
Cite as: 568 U. S. ____ (2013) 33 

Opinion of the Court 

statute (perpetual downstream control) were “worse” than

those of Kirtsaeng’s reading (restriction of market segmentation). Tr. of Oral Arg. 51. And the dissent’s reliance 

on the Solicitor General’s position in Quality King is undermined by his agreement in that case with our reading 

of §109(a). Brief for United States as Amicus Curiae in 

Quality King, O. T. 1996, No. 1470, p. 30 (“When . . . Congress wishes to make the location of manufacture relevant 

to Copyright Act protection, it does so expressly”); ibid. 

(calling it “distinctly unlikely” that Congress would have

provided an incentive for overseas manufacturing). 

Moreover, the exhaustion regime the dissent apparently

favors would provide that “the sale in one country of a

good” does not “exhaus[t] the intellectual-property owner’s 

right to control the distribution of that good elsewhere.” 

Post, at 18–19. But our holding in Quality King that 

§109(a) is a defense in U. S. courts even when “the first 

sale occurred abroad,” 523 U. S., at 145, n. 14, has already 

significantly eroded such a principle. 

IV 

For these reasons we conclude that the considerations 

supporting Kirtsaeng’s nongeographical interpretation of

the words “lawfully made under this title” are the more

persuasive. The judgment of the Court of Appeals is

reversed, and the case is remanded for further proceedings 

consistent with this opinion. 

It is so ordered. 
_________________ 

_________________ 

 


 


 

Cite as: 568 U. S. ____ (2013) 1 

KAGAN, J., concurring 

SUPREME COURT OF THE UNITED STATES 

No. 11–697 

SUPAP KIRTSAENG, DBA BLUECHRISTINE99, 

PETITIONER v. JOHN WILEY & SONS, INC.
 

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF 

APPEALS FOR THE SECOND CIRCUIT
 

[March 19, 2013]

 JUSTICE KAGAN, with whom JUSTICE ALITO joins,

concurring. 

I concur fully in the Court’s opinion. Neither the text 

nor the history of 17 U. S. C. §109(a) supports removing

first-sale protection from every copy of a protected work

manufactured abroad. See ante, at 8–16, 28–31. I recognize, however, that the combination of today’s decision

and Quality King Distributors, Inc. v. L’anza Research 

Int’l, Inc., 523 U. S. 135 (1998), constricts the scope of 

§602(a)(1)’s ban on unauthorized importation. I write to 

suggest that any problems associated with that limitation 

come not from our reading of §109(a) here, but from Quality King’s holding that §109(a) limits §602(a)(1). 

As the Court explains, the first-sale doctrine has played

an integral part in American copyright law for over a 

century. See ante, at 17–19; Bobbs-Merrill Co. v. Straus, 

210 U. S. 339 (1908). No codification of the doctrine prior

to 1976 even arguably limited its application to copies

made in the United States. See ante, at 12. And nothing

in the text or history of §109(a)—the Copyright Act of 

1976’s first-sale provision—suggests that Congress meant

to enact the new, geographical restriction John Wiley

proposes, which at once would deprive American consumers of important rights and encourage copyright holders to

manufacture abroad. See ante, at 8–16, 28–31. 
 

2 KIRTSAENG v. JOHN WILEY & SONS, INC. 

KAGAN, J., concurring 

That said, John Wiley is right that the Court’s decision, 

when combined with Quality King, substantially narrows 

§602(a)(1)’s ban on unauthorized importation. Quality 

King held that the importation ban does not reach any 

copies receiving first-sale protection under §109(a). See 

523 U. S., at 151–152. So notwithstanding §602(a)(1), an 

“owner of a particular copy . . . lawfully made under this 

title” can import that copy without the copyright owner’s 

permission. §109(a). In now holding that copies “lawfully 

made under this title” include copies manufactured 

abroad, we unavoidably diminish §602(a)(1)’s scope—

indeed, limit it to a fairly esoteric set of applications. See 

ante, at 26–27. 

But if Congress views the shrinking of §602(a)(1) as a

problem, it should recognize Quality King—not our decision today—as the culprit. Here, after all, we merely

construe §109(a); Quality King is the decision holding that 

§109(a) limits §602(a)(1). Had we come out the opposite

way in that case, §602(a)(1) would allow a copyright owner 

to restrict the importation of copies irrespective of the

first-sale doctrine.1 That result would enable the copyright owner to divide international markets in the way 

John Wiley claims Congress intended when enacting

§602(a)(1). But it would do so without imposing down-

—————— 

1Although Quality King concluded that the statute’s text foreclosed 

that outcome, see 523 U. S., at 151–152, the Solicitor General offered a 

cogent argument to the contrary. He reasoned that §109(a) does not

limit §602(a)(1) because the former authorizes owners only to “sell” or

“dispose” of copies—not to import them: The Act’s first-sale provision 

and its importation ban thus regulate separate, non-overlapping 

spheres of conduct. See Brief for United States as Amicus Curiae in 

Quality King, O. T. 1996, No. 96–1470, pp. 5, 8–10. That reading

remains the Government’s preferred way of construing the statute. See 

Tr. of Oral Arg. 44 (“[W]e think that we still would adhere to our view

that section 109(a) should not be read as a limitation on section 

602(a)(1)”); see also ante, at 32–33; post, at 21, n. 15 (GINSBURG, J., 

dissenting). 
Cite as: 568 U. S. ____ (2013) 3 

KAGAN, J., concurring 

stream liability on those who purchase and resell in the 

United States copies that happen to have been manufactured abroad. In other words, that outcome would target unauthorized importers alone, and not the “libraries, 

used-book dealers, technology companies, consumer-goods

retailers, and museums” with whom the Court today is 

rightly concerned. Ante, at 19. Assuming Congress

adopted §602(a)(1) to permit market segmentation, I suspect that is how Congress thought the provision would

work—not by removing first-sale protection from every copy

manufactured abroad (as John Wiley urges us to do here),

but by enabling the copyright holder to control imports 

even when the first-sale doctrine applies (as Quality King 

now prevents).2 

At bottom, John Wiley (together with the dissent) asks 

us to misconstrue §109(a) in order to restore §602(a)(1)

to its purportedly rightful function of enabling copyright 

holders to segment international markets. I think John 

Wiley may have a point about what §602(a)(1) was designed to do; that gives me pause about Quality King’s 

holding that the first-sale doctrine limits the importation

ban’s scope. But the Court today correctly declines the 

—————— 

2 Indeed, allowing the copyright owner to restrict imports irrespective

of the first-sale doctrine—i.e., reversing Quality King—would yield a 

far more sensible scheme of market segmentation than would adopting

John Wiley’s argument here. That is because only the former approach 

turns on the intended market for copies; the latter rests instead on their 

place of manufacture. To see the difference, imagine that John Wiley

prints all its textbooks in New York, but wants to distribute certain

versions only in Thailand. Without Quality King, John Wiley could do 

so—i.e., produce books in New York, ship them to Thailand, and prevent anyone from importing them back into the United States. But 

with Quality King, that course is not open to John Wiley even under its 

reading of §109(a): To prevent someone like Kirtsaeng from reimporting the books—and so to segment the Thai market—John Wiley 

would have to move its printing facilities abroad. I can see no reason 

why Congress would have conditioned a copyright owner’s power to

divide markets on outsourcing its manufacturing to a foreign country. 
 

4 KIRTSAENG v. JOHN WILEY & SONS, INC. 

KAGAN, J., concurring 

invitation to save §602(a)(1) from Quality King by destroying the first-sale protection that §109(a) gives to every 

owner of a copy manufactured abroad. That would swap

one (possible) mistake for a much worse one, and make

our reading of the statute only less reflective of Congressional intent. If Congress thinks copyright owners need 

greater power to restrict importation and thus divide 

markets, a ready solution is at hand—not the one John

Wiley offers in this case, but the one the Court rejected in 

Quality King. 
_________________ 

_________________ 


 


 

Cite as: 568 U. S. ____ (2013) 1 

GINSBURG, J., dissenting 

SUPREME COURT OF THE UNITED STATES 

No. 11–697 

SUPAP KIRTSAENG, DBA BLUECHRISTINE99, 

PETITIONER v. JOHN WILEY & SONS, INC.
 

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF 

APPEALS FOR THE SECOND CIRCUIT
 

[March 19, 2013]

 JUSTICE GINSBURG, with whom JUSTICE KENNEDY joins,

and with whom JUSTICE SCALIA joins except as to Parts III 

and V–B–1, dissenting. 

“In the interpretation of statutes, the function of the

courts is easily stated. It is to construe the language so as 

to give effect to the intent of Congress.” United States v. 

American Trucking Assns., Inc., 310 U. S. 534, 542 (1940). 

Instead of adhering to the Legislature’s design, the Court 

today adopts an interpretation of the Copyright Act at

odds with Congress’ aim to protect copyright owners 

against the unauthorized importation of low-priced, foreignmade copies of their copyrighted works. The Court’s bold 

departure from Congress’ design is all the more stunning,

for it places the United States at the vanguard of the

movement for “international exhaustion” of copyrights—a

movement the United States has steadfastly resisted on

the world stage. 

To justify a holding that shrinks to insignificance copyright protection against the unauthorized importation of

foreign-made copies, the Court identifies several “practical

problems.” Ante, at 24. The Court’s parade of horribles, 

however, is largely imaginary. Congress’ objective in

enacting 17 U. S. C. §602(a)(1)’s importation prohibition 

can be honored without generating the absurd consequences hypothesized in the Court’s opinion. I dissent 
 

 

2 KIRTSAENG v. JOHN WILEY & SONS, INC. 

GINSBURG, J., dissenting 

from the Court’s embrace of “international exhaustion,” 

and would affirm the sound judgment of the Court of

Appeals. 

I 

Because economic conditions and demand for particular

goods vary across the globe, copyright owners have a

financial incentive to charge different prices for copies of 

their works in different geographic regions. Their ability 

to engage in such price discrimination, however, is undermined if arbitrageurs are permitted to import copies 

from low-price regions and sell them in high-price regions.

The question in this case is whether the unauthorized 

importation of foreign-made copies constitutes copyright

infringement under U. S. law.

To answer this question, one must examine three provisions of Title 17 of the U. S. Code: §§106(3), 109(a), and 

602(a)(1). Section 106 sets forth the “exclusive rights” of a

copyright owner, including the right “to distribute copies 

or phonorecords of the copyrighted work to the public by 

sale or other transfer of ownership, or by rental, lease, or

lending.” §106(3). This distribution right is limited by 

§109(a), which provides: “Notwithstanding the provisions

of section 106(3), the owner of a particular copy or phonorecord 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 or 

phonorecord.” Section 109(a) codifies the “first sale doctrine,” a doctrine articulated in Bobbs-Merrill Co. v. 

Straus, 210 U. S. 339, 349–351 (1908), which held that a 

copyright owner could not control the price at which retailers sold lawfully purchased copies of its work. The 

first sale doctrine recognizes that a copyright owner 

should not be permitted to exercise perpetual control over 

the distribution of copies of a copyrighted work. At some 

point—ordinarily the time of the first commercial sale— 
 

 

 

Cite as: 568 U. S. ____ (2013) 3 

GINSBURG, J., dissenting 

the copyright owner’s exclusive right under §106(3) to 

control the distribution of a particular copy is exhausted, 

and from that point forward, the copy can be resold or 

otherwise redistributed without the copyright owner’s 

authorization. 

Section 602(a)(1) (2006 ed., Supp. V)1—last, but most 

critical, of the three copyright provisions bearing on this

case—is an importation ban. It reads: 

“Importation into the United States, without the

authority of the owner of copyright under this title, of 

copies or phonorecords of a work that have been

acquired outside the United States is an infringement of the exclusive right to distribute copies or

phonorecords under section 106, actionable under section 501.” 

In Quality King Distributors, Inc. v. L’anza Research 

Int’l, Inc., 523 U. S. 135, 143–154 (1998), the Court held 

that a copyright owner’s right to control importation under 

§602(a)(1) is a component of the distribution right set forth

in §106(3) and is therefore subject to §109(a)’s codification

of the first sale doctrine. Quality King thus held that 

the importation of copies made in the United States but 

sold abroad did not rank as copyright infringement 

under §602(a)(1). Id., at 143–154. See also id., at 154 

(GINSBURG, J., concurring) (Quality King “involve[d] a

‘round trip’ journey, travel of the copies in question from

the United States to places abroad, then back again”).2 

—————— 

1 In 2008, Congress renumbered what was previously §602(a) as 

§602(a)(1). See Prioritizing Resources and Organization for Intellectual 

Property Act of 2008 (PROIPA), §105(b)(2), 122 Stat. 4259. Like the 

Court, I refer to the provision by its current numbering. 2Although JUSTICE KAGAN’s concurrence suggests that Quality King

erred in “holding that §109(a) limits §602(a)(1),” ante, at 2, that recent, 

unanimous holding must be taken as a given. See John R. Sand & 

Gravel Co. v. United States, 552 U. S. 130, 139 (2008) (“[S]tare decisis

in respect to statutory interpretation has ‘special force,’ for ‘Congress 
 

 

4 KIRTSAENG v. JOHN WILEY & SONS, INC. 

GINSBURG, J., dissenting 

Important to the Court’s holding, the copies at issue in 

Quality King had been “‘lawfully made under [Title 

17]’”—a prerequisite for application of §109(a). Id., at 143, 

n. 9 (quoting §109(a)). Section 602(a)(1), the Court noted, 

would apply to “copies that were ‘lawfully made’ not under 

the United States Copyright Act, but instead, under the

law of some other country.” Id., at 147. Drawing on an

example discussed during a 1964 public meeting on proposed revisions to the U. S. copyright laws,3 the Court 

stated: 

“If the author of [a] work gave the exclusive United 

States distribution rights—enforceable under the 

Act—to the publisher of the United States edition and 

the exclusive British distribution rights to the publisher of the British edition, . . . presumably only those 

[copies] made by the publisher of the United States 

edition would be ‘lawfully made under this title’

within the meaning of §109(a). The first sale doctrine 

would not provide the publisher of the British edition

who decided to sell in the American market with a defense to an action under §602(a) (or, for that matter, 

—————— 

remains free to alter what we have done.’ ” (quoting Patterson v. 

McLean Credit Union, 491 U. S. 164, 172–173 (1989))). The Court’s 

objective in this case should be to avoid unduly “constrict[ing] the scope 

of §602(a)(1)’s ban on unauthorized importation,” ante, at 1 (opinion of 

KAGAN, J.), while at the same time remaining faithful to Quality King’s 

holding and to the text and history of other Copyright Act provisions. 

This aim is not difficult to achieve. See Parts II–V, infra. JUSTICE 

KAGAN and I appear to agree to this extent: Congress meant the ban on 

unauthorized importation to have real force. See ante, at 3 (acknowledging that “Wiley may have a point about what §602(a)(1) was de

signed to do”). 3See Quality King Distributors, Inc. v. L’anza Research Int’l, Inc., 523 

U. S. 135, 148, n. 20 (1998) (quoting Copyright Law Revision Part 4:

Further Discussions and Comments on Preliminary Draft for Revised 

U. S. Copyright Law, 88th Cong., 2d Sess., 119 (H. R. Judiciary Comm.

Print 1964) (hereinafter Copyright Law Revision Part 4) (statement of

Harriet Pilpel)). 

­
 

Cite as: 568 U. S. ____ (2013) 5 

GINSBURG, J., dissenting 

to an action under §106(3), if there was a distribution

of the copies).” Id., at 148. 

As the District Court and the Court of Appeals concluded, 

see 654 F. 3d 210, 221–222 (CA2 2011); App. to Pet. for 

Cert. 70a–73a, application of the Quality King analysis to

the facts of this case would preclude any invocation of

§109(a). Petitioner Supap Kirtsaeng imported and then

sold at a profit over 600 copies of copyrighted textbooks 

printed outside the United States by the Asian subsidiary

of respondent John Wiley & Sons, Inc. (Wiley). App. 29–

34. See also ante, at 3–5 (opinion of the Court). In the 

words the Court used in Quality King, these copies “were

‘lawfully made’ not under the United States Copyright

Act, but instead, under the law of some other country.”

523 U. S., at 147. Section 109(a) therefore does not apply, and Kirtsaeng’s unauthorized importation constitutes 

copyright infringement under §602(a)(1). 

The Court does not deny that under the language I have

quoted from Quality King, Wiley would prevail. Ante, at 

27. Nevertheless, the Court dismisses this language, to

which all Members of the Quality King Court subscribed, 

as ill-considered dictum. Ante, at 27–28. I agree that the

discussion was dictum in the sense that it was not essential to the Court’s judgment. See Quality King, 523 U. S., 

at 154 (GINSBURG, J., concurring) (“[W]e do not today 

resolve cases in which the allegedly infringing imports 

were manufactured abroad.”). But I disagree with the 

Court’s conclusion that this dictum was ill considered. 

Instead, for the reasons explained below, I would hold, 

consistently with Quality King’s dictum, that §602(a)(1) 

authorizes a copyright owner to bar the importation of a 

copy manufactured abroad for sale abroad. 

II 

The text of the Copyright Act demonstrates that Congress intended to provide copyright owners with a potent 
 

 

 

6 KIRTSAENG v. JOHN WILEY & SONS, INC. 

GINSBURG, J., dissenting 

remedy against the importation of foreign-made copies of

their copyrighted works. As the Court recognizes, ante, at 

3, this case turns on the meaning of the phrase “lawfully

made under this title” in §109(a). In my view, that phrase

is most sensibly read as referring to instances in which a 

copy’s creation is governed by, and conducted in compliance with, Title 17 of the U. S. Code. This reading is

consistent with the Court’s interpretation of similar language in other statutes. See Florida Dept. of Revenue v. 

Piccadilly Cafeterias, Inc., 554 U. S. 33, 52–53 (2008) 

(“under” in 11 U. S. C. §1146(a), a Bankruptcy Code provision exempting certain asset transfers from stamp taxes, 

means “pursuant to”); Ardestani v. INS, 502 U. S. 129, 135 

(1991) (the phrase “under section 554” in the Equal Access

to Justice Act means “subject to” or “governed by” 5 

U. S. C. §554 (internal quotation marks omitted)). It also 

accords with dictionary definitions of the word “under.”

See, e.g., American Heritage Dictionary 1887 (5th ed. 

2011) (“under” means, among other things, “[s]ubject to

the authority, rule, or control of ”).

Section 109(a), properly read, affords Kirtsaeng no

defense against Wiley’s claim of copyright infringement.

The Copyright Act, it has been observed time and again, 

does not apply extraterritorially. See United Dictionary 

Co. v. G. & C. Merriam Co., 208 U. S. 260, 264 (1908) 

(copyright statute requiring that U. S. copyright notices be 

placed in all copies of a work did not apply to copies published abroad because U. S. copyright laws have no “force” 

beyond the United States’ borders); 4 M. Nimmer & D.

Nimmer, Copyright §17.02, p. 17–18 (2012) (hereinafter 

Nimmer) (“[C]opyright laws do not have any extraterritorial operation.”); 4 W. Patry, Copyright §13:22, p. 13–66

(2012) (hereinafter Patry) (“Copyright laws are rigorously territorial.”). The printing of Wiley’s foreignmanufactured textbooks therefore was not governed by

Title 17. The textbooks thus were not “lawfully made 
 

 

Cite as: 568 U. S. ____ (2013) 7 

GINSBURG, J., dissenting 

under [Title 17],” the crucial precondition for application 

of §109(a). And if §109(a) does not apply, there is no dispute that Kirtsaeng’s conduct constituted copyright in

fringement under §602(a)(1).

The Court’s point of departure is similar to mine. According to the Court, the phrase “‘lawfully made under 

this title’ means made ‘in accordance with’ or ‘in compliance with’ the Copyright Act.” Ante, at 8. But the Court 

overlooks that, according to the very dictionaries it cites, 

ante, at 9, the word “under” commonly signals a relationship of subjection, where one thing is governed or regulated by another. See Black’s Law Dictionary 1525 (6th ed.

1990) (“under” “frequently” means “inferior” or “subordinate” (internal quotation marks omitted)); 18 Oxford 

English Dictionary 950 (2d ed. 1989) (“under” means, 

among other things, “[i]n accordance with (some regulative 

power or principle)” (emphasis added)). See also Webster’s 

Third New International Dictionary 2487 (1961) (“under” 

means, among other things, “in . . . a condition of subjection, regulation, or subordination” and “suffering restriction, restraint, or control by”). Only by disregarding

this established meaning of “under” can the Court arrive

at the conclusion that Wiley’s foreign-manufactured textbooks were “lawfully made under” U. S. copyright law,

even though that law did not govern their creation. It is 

anomalous, however, to speak of particular conduct as 

“lawful” under an inapplicable law. For example, one

might say that driving on the right side of the road in

England is “lawful” under U. S. law, but that would be so

only because U. S. law has nothing to say about the subject. The governing law is English law, and English law 

demands that driving be done on the left side of the road.4 

—————— 

4The Court asserts that my position gives the word “lawfully” in 

§109(a) “little, if any, linguistic work to do.” Ante, at 9. That is not so. 

My reading gives meaning to each word in the phrase “lawfully made 

­
 

8 KIRTSAENG v. JOHN WILEY & SONS, INC. 

GINSBURG, J., dissenting 

The logical implication of the Court’s definition of the 

word “under” is that any copy manufactured abroad—even 

a piratical one made without the copyright owner’s authorization and in violation of the law of the country where it 

was created—would fall within the scope of §109(a). Any 

such copy would have been made “in accordance with” or

“in compliance with” the U. S. Copyright Act, in the sense 

that manufacturing the copy did not violate the Act (because the Act does not apply extraterritorially). 

The Court rightly refuses to accept such an absurd

conclusion. Instead, it interprets §109(a) as applying only

to copies whose making actually complied with Title 17, or

would have complied with Title 17 had Title 17 been applicable (i.e., had the copies been made in the United 

States). See ante, at 8 (“§109(a)’s ‘first sale’ doctrine would 

apply to copyrighted works as long as their manufacture

met the requirements of American copyright law.”). Congress, however, used express language when it called for

such a counterfactual inquiry in 17 U. S. C. §§602(a)(2) 

and (b). See §602(a)(2) (“Importation into the United 

States or exportation from the United States, without the

authority of the owner of copyright under this title, of

copies or phonorecords, the making of which either constituted an infringement of copyright, or which would have 

constituted an infringement of copyright if this title had 

been applicable, is an infringement of the exclusive right 

to distribute copies or phonorecords under section 106.” 

(emphasis added)); §602(b) (“In a case where the making 

—————— 

under this title.” The word “made” signifies that the conduct at issue is 

the creation or manufacture of a copy. See Webster’s Third New 

International Dictionary 1356 (1961) (defining “made” as “artificially

produced by a manufacturing process”). The word “lawfully” indicates 

that for §109(a) to apply, the copy’s creation must have complied with 

some body of law. Finally, the prepositional phrase “under this title”

clarifies what that body of law is—namely, the copyright prescriptions

contained in Title 17 of the U. S. Code. 
 

Cite as: 568 U. S. ____ (2013) 9 

GINSBURG, J., dissenting 

of the copies or phonorecords would have constituted an 

infringement of copyright if this title had been applicable, 

their importation is prohibited.” (emphasis added)). Had 

Congress intended courts to engage in a similarly hypothetical inquiry under §109(a), Congress would presumably have included similar language in that section. 

See Russello v. United States, 464 U. S. 16, 23 (1983) 

(“‘[W]here Congress includes particular language in one 

section of a statute but omits it in another section of the 

same Act, it is generally presumed that Congress acts

intentionally and purposely in the disparate inclusion

or exclusion.’” (quoting United States v. Wong Kim Bo, 

472 F. 2d 720, 722 (CA5 1972) (per curiam); brackets in 

original)).5 

—————— 

5Attempting to show that my reading of §109(a) is susceptible to the

same criticism, the Court points to the now-repealed “manufacturing

clause,” which required “copies of a work consisting preponderantly of

nondramatic literary material . . . in the English language” to be

“manufactured in the United States or Canada.” Copyright Act of 1976, 

§601(a), 90 Stat. 2588. Because Congress expressly referred to manufacturing in this provision, the Court contends, the phrase “lawfully

made under this title” in §109(a) cannot mean “manufactured in the 

United States.” Ante, at 19. This argument is a non sequitur. I do not 

contend that the phrases “lawfully made under this title” and “manufactured in the United States” are interchangeable. To repeat, I read 

the phrase “lawfully made under this title” as referring to instances in 

which a copy’s creation is governed by, and conducted in compliance 

with, Title 17 of the U. S. Code. See supra, at 6. Not all copies “manufactured in the United States” will satisfy this standard. For example,

piratical copies manufactured in the United States without the copyright owner’s authorization are not “lawfully made under [Title 17].”

Nor would the phrase “lawfully manufactured in the United States” be

an exact substitute for “lawfully made under this title.” The making of

a copy may be lawful under Title 17 yet still violate some other provision of law. Consider, for example, a copy made with the copyright 

owner’s authorization by workers who are paid less than minimum 

wage. The copy would be “lawfully made under [Title 17]” in the sense

that its creation would not violate any provision of that title, but the

copy’s manufacturing would nonetheless be unlawful due to the viola­
 

 

 

10 KIRTSAENG v. JOHN WILEY & SONS, INC. 

GINSBURG, J., dissenting 

Not only does the Court adopt an unnatural construction of the §109(a) phrase “lawfully made under this title.”

Concomitantly, the Court reduces §602(a)(1) to insignificance. As the Court appears to acknowledge, see ante, at 

26, the only independent effect §602(a)(1) has under today’s decision is to prohibit unauthorized importations

carried out by persons who merely have possession of, but 

do not own, the imported copies. See 17 U. S. C. §109(a) 

(§109(a) applies to any “owner of a particular copy or

phonorecord lawfully made under this title” (emphasis

added)).6 If this is enough to avoid rendering §602(a)(1)

entirely “superfluous,” ante, at 26, it hardly suffices to give 

the owner’s importation right the scope Congress intended 

it to have. Congress used broad language in §602(a)(1); it

did so to achieve a broad objective. Had Congress intended

simply to provide a copyright remedy against larcenous 

lessees, licensees, consignees, and bailees of films and 

other copyright-protected goods, see ante, at 13–14, 26, it 

likely would have used language tailored to that narrow 

purpose. See 2 Nimmer §8.12[B][6][c], at 8–184.31, n. 432

(“It may be wondered whether . . . potential causes of 

action [against licensees and the like] are more than theoretical.”). See also ante, at 2 (KAGAN, J., concurring) (the

Court’s decision limits §602(a)(1) “to a fairly esoteric set of 

—————— 

tion of the minimum-wage laws. 6When §602(a)(1) was originally enacted in 1976, it played an additional role—providing a private cause of action against importers of

piratical goods. See Quality King, 523 U. S., at 146. In 2008, however, 

Congress amended §602 to provide for such a cause of action in

§602(a)(2), which prohibits the unauthorized “[i]mportation into the 

United States . . . of copies or phonorecords, the making of which either

constituted an infringement of copyright, or which would have constituted an infringement of copyright if [Title 17] had been applicable.” 

See PROIPA, §105(b)(3), 122 Stat. 4259–4260. Thus, under the Court’s 

interpretation, the only conduct reached by §602(a)(1) but not 

§602(a)(2) is a nonowner’s unauthorized importation of a nonpiratical 

copy. 
Cite as: 568 U. S. ____ (2013) 11 

GINSBURG, J., dissenting 

applications”).7 

The Court’s decision also overwhelms 17 U. S. C. 

§602(a)(3)’s exceptions to §602(a)(1)’s importation prohibition. 2 P. Goldstein, Copyright §7.6.1.2(a), p. 7:141 (3d ed. 

2012) (hereinafter Goldstein).8 Those exceptions permit

the importation of copies without the copyright owner’s 

authorization for certain governmental, personal, scholarly, educational, and religious purposes. 17 U. S. C. 

§602(a)(3). Copies imported under these exceptions “will 

often be lawfully made gray market goods purchased 

through normal market channels abroad.” 2 Goldstein 

—————— 

7Notably, the Court ignores the history of §602(a)(1), which reveals 

that the primary purpose of the prescription was not to provide a 

remedy against rogue licensees, consignees, and bailees, against whom

copyright owners could frequently assert breach-of-contract claims even 

in the absence of §602(a)(1). Instead, the primary purpose of §602(a)(1)

was to reach third-party importers, enterprising actors like Kirtsaeng,

against whom copyright owners could not assert contract claims due to

lack of privity. See Part III, infra. 8Section 602(a)(3) provides: 

“This subsection [i.e., §602(a)] does not apply to— 

“(A) importation or exportation of copies or phonorecords under the 

authority or for the use of the Government of the United States or of

any State or political subdivision of a State, but not including copies or 

phonorecords for use in schools, or copies of any audiovisual work

imported for purposes other than archival use; 

“(B) importation or exportation, for the private use of the importer or

exporter and not for distribution, by any person with respect to no more

than one copy or phonorecord of any one work at any one time, or by 

any person arriving from outside the United States or departing from 

the United States with respect to copies or phonorecords forming part 

of such person’s personal baggage; or

“(C) importation by or for an organization operated for scholarly, 

educational, or religious purposes and not for private gain, with respect

to no more than one copy of an audiovisual work solely for its archival

purposes, and no more than five copies or phonorecords of any other 

work for its library lending or archival purposes, unless the importation 

of such copies or phonorecords is part of an activity consisting of sys

tematic reproduction or distribution, engaged in by such organization

in violation of the provisions of section 108(g)(2).” 

­
 

 

12 KIRTSAENG v. JOHN WILEY & SONS, INC. 

GINSBURG, J., dissenting 

§7.6.1.2(a), at 7:141.9 But if, as the Court holds, such 

copies can in any event be imported by virtue of §109(a), 

§602(a)(3)’s work has already been done. For example,

had Congress conceived of §109(a)’s sweep as the Court 

does, what earthly reason would there be to provide, as 

Congress did in §602(a)(3)(C), that a library may import 

“no more than five copies” of a non-audiovisual work for its 

“lending or archival purposes”? 

The far more plausible reading of §§109(a) and 602(a),

then, is that Congress intended §109(a) to apply to copies

made in the United States, not to copies manufactured 

and sold abroad. That reading of the first sale and importation provisions leaves §602(a)(3)’s exceptions with real,

meaningful work to do. See TRW Inc. v. Andrews, 534 

U. S. 19, 31 (2001) (“It is a cardinal principle of statutory 

construction that a statute ought, upon the whole, to be so 

construed that, if it can be prevented, no clause, sentence, or word shall be superfluous, void, or insignificant.”

(internal quotation marks omitted)). In the range of circumstances covered by the exceptions, §602(a)(3) frees individuals and entities who purchase foreign-made copies 

abroad from the requirement they would otherwise face

under §602(a)(1) of obtaining the copyright owner’s permission to import the copies into the United States.10 

—————— 

9The term “gray market good” refers to a good that is “imported outside the distribution channels that have been contractually negotiated 

by the intellectual property owner.” Forsyth & Rothnie, Parallel 

Imports, in The Interface Between Intellectual Property Rights and

Competition Policy 429 (S. Anderman ed. 2007). Such goods are also 

commonly called “parallel imports.” Ibid. 10The Court asserts that its reading of §109(a) is bolstered by §104, 

which extends the copyright “protection[s]” of Title 17 to a wide variety 

of foreign works. See ante, at 10–11. The “protection under this title” 

afforded by §104, however, is merely protection against infringing

conduct within the United States, the only place where Title 17 applies.

See 4 W. Patry, Copyright §13:44.10, pp. 13–128 to 13–129 (2012)

(hereinafter Patry). Thus, my reading of the phrase “under this title” in 
Cite as: 568 U. S. ____ (2013) 13 

GINSBURG, J., dissenting 

III 

The history of §602(a)(1) reinforces the conclusion I

draw from the text of the relevant provisions: §109(a) 

does not apply to copies manufactured abroad. Section 

602(a)(1) was enacted as part of the Copyright Act of 1976, 

90 Stat. 2589–2590. That Act was the product of a lengthy 

revision effort overseen by the U. S. Copyright Office. See 

Mills Music, Inc. v. Snyder, 469 U. S. 153, 159–160 (1985). 

In its initial 1961 report on recommended revisions, the 

Copyright Office noted that publishers had “suggested 

that the [then-existing] import ban on piratical copies

should be extended to bar the importation of . . . foreign 

edition[s]” in violation of “agreements to divide international markets for copyrighted works.” Copyright Law

Revision: Report of the Register of Copyrights on the 

General Revision of the U. S. Copyright Law, 87th Cong.,

1st Sess., 126 (H. R. Judiciary Comm. Print 1961) (hereinafter Copyright Law Revision). See Copyright Act of 1947, 

§106, 61 Stat. 663 (“The importation into the United

States . . . of any piratical copies of any work copyrighted 

—————— 

§109(a) is consistent with Congress’ use of that phrase in §104. Fur

thermore, §104 describes which works are entitled to copyright protec

tion under U. S. law. But no one disputes that Wiley’s copyrights in the 

works at issue in this case are valid. The only question is whether 

Kirtsaeng’s importation of copies of those works infringed Wiley’s

copyrights. It is basic to copyright law that “[o]wnership of a copyright

. . . is distinct from ownership of any material object in which the work 

is embodied.” 17 U. S. C. §202. See also §101 (“‘Copies’ are material

objects, other than phonorecords, in which a work is fixed by any

method now known or later developed, and from which the work can be

perceived, reproduced, or otherwise communicated, either directly or 

with the aid of a machine or device.”). Given the distinction copyright 

law draws between works and copies, §104 is inapposite to the question

here presented. 4 Patry §13:44.10, at 13–129 (“There is no connection,

linguistically or substantively, between Section[s] 104 and 109: Section

104 deals with national eligibility for the intangible work of authorship; 

Section 109(a) deals with the tangible, physical embodiment of the 

work, the ‘copy.’ ”). 

­

­
 

14 KIRTSAENG v. JOHN WILEY & SONS, INC. 

GINSBURG, J., dissenting 

in the United States . . . is prohibited.”). The Copyright

Office originally recommended against such an extension 

of the importation ban, reasoning that enforcement of 

territorial restrictions was best left to contract law. Copyright Law Revision 126.

Publishing-industry representatives argued strenuously 

against the position initially taken by the Copyright Office. At a 1962 panel discussion on the Copyright Office’s

report, for example, Horace Manges of the American Book 

Publishers Council stated: 

“When a U. S. book publisher enters into a contract

with a British publisher to acquire exclusive U. S. 

rights for a particular book, he often finds that the 

English edition . . . of that particular book finds its 

way into this country. Now it’s all right to say, ‘Commence a lawsuit for breach of contract.’ But this is 

expensive, burdensome, and, for the most part, ineffective.” Copyright Law Revision Part 2: Discussion 

and Comments on Report of the Register of Copyrights on the General Revision of the U. S. Copyright

Law, 88th Cong., 1st Sess., 212 (H. R. Judiciary

Comm. Print 1963). 

Sidney Diamond, representing London Records, elaborated on Manges’ statement. “There are many situations,”

he explained, “in which it is not necessarily a question of 

the inadequacy of a contract remedy—in the sense that it 

may be difficult or not quick enough to solve the particular

problem.” Id., at 213. “Very frequently,” Diamond stated,

publishers “run into a situation where . . . copies of [a]

work . . . produced in a foreign country . . . may be shipped 

[to the United States] without violating any contract of the 

U. S. copyright proprietor.” Ibid. To illustrate, Diamond 

noted, if a “British publisher [sells a copy] to an individual 

who in turn ship[s] it over” to the United States, the individual’s conduct would not “violate [any] contract between 
 

 

 

Cite as: 568 U. S. ____ (2013) 15 

GINSBURG, J., dissenting 

the British and the American publisher.” Ibid. In such a 

case, “no possibility of any contract remedy” would exist. 

Ibid. The facts of Kirtsaeng’s case fit Diamond’s example,

save that the copies at issue here were printed and initially sold in Asia rather than Great Britain.

After considering comments on its 1961 report, the

Copyright Office “prepared a preliminary draft of provisions for a new copyright statute.” Copyright Law Revision Part 3: Preliminary Draft for Revised U. S. Copyright

Law and Discussions and Comments on the Draft, 88th 

Cong., 2d Sess., V (H. R. Judiciary Comm. Print 1964).

Section 44 of the draft statute addressed the concerns 

raised by publishing-industry representatives. In particular, §44(a) provided: 

“Importation into the United States of copies or records of a work for the purpose of distribution to the 

public shall, if such articles are imported without the 

authority of the owner of the exclusive right to distribute copies or records under this title, constitute an

infringement of copyright actionable under section 35 

[i.e., the section providing for a private cause of action

for copyright infringement].” Id., at 32–33. 

In a 1964 panel discussion regarding the draft statute,

Abe Goldman, the Copyright Office’s General Counsel, left 

no doubt about the meaning of §44(a). It represented, he 

explained, a “shif[t]” from the Copyright Office’s 1961

report, which had recommended against using copyright 

law to facilitate publishers’ efforts to segment international markets. Copyright Law Revision Part 4: Further

Discussions and Comments on Preliminary Draft for 

Revised U. S. Copyright Law, 88th Cong., 2d Sess., 203

(H. R. Judiciary Comm. Print 1964). Section 44(a), Goldman stated, would allow copyright owners to bring infringement actions against importers of “foreign copies

that were made under proper authority.” Ibid. See also 
 

 

16 KIRTSAENG v. JOHN WILEY & SONS, INC. 

GINSBURG, J., dissenting 

id., at 205–206 (Goldman agreed with a speaker’s comment that §44(a) “enlarge[d]” U. S. copyright law by extending import prohibitions “to works legally produced in 

Europe” and other foreign countries).11 

The next step in the copyright revision process was the

introduction in Congress of a draft bill on July 20, 1964. 

See Copyright Law Revision Part 5: 1964 Revision Bill

with Discussions and Comments, 89th Cong., 1st Sess., III 

(H. R. Judiciary Comm. Print 1965). After another round 

of public comments, a revised bill was introduced on February 4, 1965. See Copyright Law Revision Part 6: Supplementary Report of the Register of Copyrights on the

General Revision of the U. S. Copyright Law: 1965 Revision Bill, 89th Cong., 1st Sess., V (H. R. Judiciary Comm.

Print 1965) (hereinafter Copyright Law Revision Part 6).

In language closely resembling the statutory text later 

enacted by Congress, §602(a) of the 1965 bill provided: 

“Importation into the United States, without the authority of the owner of copyright under this title, of 

copies or phonorecords of a work for the purpose of 

distribution to the public is an infringement of the exclusive right to distribute copies or phonorecords under section 106, actionable under section 501.” Id., at 

292.12 

—————— 

11As the Court observes, ante, at 29, Irwin Karp of the Authors

League of America stated at the 1964 panel discussion that §44(a) ran

counter to “the very basic concept of copyright law that, once you’ve sold

a copy legally, you can’t restrict its resale.” Copyright Law Revision 

Part 4, at 212. When asked if he was “presenting . . . an argument

against” §44(a), however, Karp responded that he was “neutral on th[e]

provision.” Id., at 211. There is thus little reason to believe that any

changes to the wording of §44(a) before its codification in §602(a) were

made in response to Karp’s discussion of “the problem of restricting

[the] transfer of . . . lawfully obtained [foreign] copies.” Ibid. 12There is but one difference between this language from the 1965 

bill and the corresponding language in the current version of §602(a)(1): 
 

 

Cite as: 568 U. S. ____ (2013) 17 

GINSBURG, J., dissenting 

The Court implies that the 1965 bill’s “explici[t] refer[ence] to §106” showed a marked departure from §44(a)

of the Copyright Office’s prior draft. Ante, at 29. The 

Copyright Office, however, did not see it that way. In its 

summary of the 1965 bill’s provisions, the Copyright Office

observed that §602(a) of the 1965 bill, like §44(a) of the

Copyright Office’s prior draft, see supra, at 15–16, permitted copyright owners to bring infringement actions against 

unauthorized importers in cases “where the copyright

owner had authorized the making of [the imported] copies 

in a foreign country for distribution only in that country.”

Copyright Law Revision Part 6, at 149–150. See also id., 

at XXVI (Under §602(a) of the 1965 bill, “[a]n unauthorized 

importer could be enjoined and sued for damages both

where the copies or phonorecords he was importing

were ‘piratical’ (that is, where their making would have

constituted an infringement if the U. S. copyright law 

could have been applied), and where their making was 

‘lawful.’”).

The current text of §602(a)(1) was finally enacted into

law in 1976. See Copyright Act of 1976, §602(a), 90 Stat. 

2589–2590. The House and Senate Committee Reports on

the 1976 Act demonstrate that Congress understood, as 

did the Copyright Office, just what that text meant. Both 

Reports state: 

“Section 602 [deals] with two separate situations: importation of ‘piratical’ articles (that is, copies or

phonorecords made without any authorization of the 

—————— 

In the current version, the phrase “for the purpose of distribution to the 

public” is omitted and the phrase “that have been acquired outside the 

United States” appears in its stead. There are no material differences 

between the quoted language from the 1965 bill and the corresponding

language contained in the 1964 bill. See Copyright Law Revision Part

6: Supplementary Report of the Register of Copyrights on the General 

Revision of the U. S. Copyright Law: 1965 Revision Bill, 89th Cong., 1st

Sess., 292–293 (H. R. Judiciary Comm. Print 1965). 
 

 

18 KIRTSAENG v. JOHN WILEY & SONS, INC. 

GINSBURG, J., dissenting 

copyright owner), and unauthorized importation of 

copies or phonorecords that were lawfully made. The 

general approach of section 602 is to make unauthorized importation an act of infringement in both cases, 

but to permit the Bureau of Customs to prohibit importation only of ‘piratical’ articles.” S. Rep. No. 94– 

473, p. 151 (1975) (emphasis added). See also H. R. 

Rep. No. 94–1476, p. 169 (1976) (same). 

In sum, the legislative history of the Copyright Act of

1976 is hardly “inconclusive.” Ante, at 28. To the contrary, it confirms what the plain text of the Act conveys:

Congress intended §602(a)(1) to provide copyright owners

with a remedy against the unauthorized importation of 

foreign-made copies of their works, even if those copies

were made and sold abroad with the copyright owner’s

authorization.13 

IV 

Unlike the Court’s holding, my position is consistent with

the stance the United States has taken in internationaltrade negotiations. This case bears on the highly contentious trade issue of interterritorial exhaustion. The 

issue arises because intellectual property law is territorial 

in nature, see supra, at 6, which means that creators of 

intellectual property “may hold a set of parallel” intellectual property rights under the laws of different nations.

Chiappetta, The Desirability of Agreeing to Disagree: The 

WTO, TRIPS, International IPR Exhaustion and a Few 

Other Things, 21 Mich. J. Int’l L. 333, 340–341 (2000)

(hereinafter Chiappetta). There is no international con­

—————— 

13The Court purports to find support for its position in the House and 

Senate Committee Reports on the 1976 Copyright Act. Ante, at 30–31. 

It fails to come up with anything in the Act’s legislative history, however, showing that Congress understood the words “lawfully made under

this title” in §109(a) to encompass foreign-made copies. 
Cite as: 568 U. S. ____ (2013) 19 

GINSBURG, J., dissenting 

sensus on whether the sale in one country of a good incorporating protected intellectual property exhausts the

intellectual property owner’s right to control the distribution of that good elsewhere. Indeed, the members of the 

World Trade Organization, “agreeing to disagree,”14 provided in Article 6 of the Agreement on Trade-Related

Aspects of Intellectual Property Rights (TRIPS), Apr. 15, 

1994, 33 I. L. M. 1197, 1200, that “nothing in this Agreement shall be used to address the issue of . . . exhaustion.” 

See Chiappetta 346 (observing that exhaustion of intellectual property rights was “hotly debated” during the TRIPS

negotiations and that Article 6 “reflects [the negotiators’] 

ultimate inability to agree” on a single international 

standard). Similar language appears in other treaties to

which the United States is a party. See World Intellectual 

Property Organization (WIPO) Copyright Treaty, Art. 6(2),

Dec. 20, 1996, S. Treaty Doc. No. 105–17, p. 7 (“Nothing in

this Treaty shall affect the freedom of Contracting Parties 

to determine the conditions, if any, under which the exhaustion of the right [to control distribution of copies of a 

copyrighted work] applies after the first sale or other 

transfer of ownership of the original or a copy of the work 

with the authorization of the author.”); WIPO Performances and Phonograms Treaty, Art. 8(2), Dec. 20, 1996, 

S. Treaty Doc. No. 105–17, p. 28 (containing language 

nearly identical to Article 6(2) of the WIPO Copyright

Treaty).

In the absence of agreement at the international level,

each country has been left to choose for itself the exhaustion framework it will follow. One option is a nationalexhaustion regime, under which a copyright owner’s right 

—————— 

14Chiappetta, The Desirability of Agreeing to Disagree: The WTO, 

TRIPS, International IPR Exhaustion and a Few Other Things, 21

Mich. J. Int’l L. 333, 340 (2000) (hereinafter Chiappetta) (internal

quotation marks omitted). 
 

 

20 KIRTSAENG v. JOHN WILEY & SONS, INC. 

GINSBURG, J., dissenting 

to control distribution of a particular copy is exhausted 

only within the country in which the copy is sold. See 

Forsyth & Rothnie, Parallel Imports, in The Interface 

Between Intellectual Property Rights and Competition 

Policy 429, 430 (S. Anderman ed. 2007) (hereinafter

Forsyth & Rothnie). Another option is a rule of international 

exhaustion, under which the authorized distribution of a 

particular copy anywhere in the world exhausts the copyright owner’s distribution right everywhere with respect

to that copy. See ibid. The European Union has adopted 

the intermediate approach of regional exhaustion, under 

which the sale of a copy anywhere within the European 

Economic Area exhausts the copyright owner’s distribution right throughout that region. See id., at 430, 445. 

Section 602(a)(1), in my view, ties the United States to a

national-exhaustion framework. The Court’s decision, in contrast, places the United States solidly in the internationalexhaustion camp.

Strong arguments have been made both in favor of, and 

in opposition to, international exhaustion. See Chiappetta 

360 (“[r]easonable people making valid points can, and 

do, reach conflicting conclusions” regarding the desirability 

of international exhaustion). International exhaustion 

subjects copyright-protected goods to competition from

lower priced imports and, to that extent, benefits consumers. Correspondingly, copyright owners profit from a 

national-exhaustion regime, which also enlarges the monetary incentive to create new copyrightable works. See 

Forsyth & Rothnie 432–437 (surveying arguments for and 

against international exhaustion).

Weighing the competing policy concerns, our Government reached the conclusion that widespread adoption of 

the international-exhaustion framework would be inconsistent with the long-term economic interests of the United

States. See Brief for United States as Amicus Curiae in 

Quality King, O. T. 1997, No. 96–1470, pp. 22–26 (herein­
Cite as: 568 U. S. ____ (2013) 21 

GINSBURG, J., dissenting 

after Quality King Brief).15 Accordingly, the United States

has steadfastly “taken the position in international trade 

negotiations that domestic copyright owners should . . . 

have the right to prevent the unauthorized importation of 

copies of their work sold abroad.” Id., at 22. The United 

States has “advanced this position in multilateral trade 

negotiations,” including the negotiations on the TRIPS 

Agreement. Id., at 24. See also D. Gervais, The TRIPS 

Agreement: Drafting History and Analysis §2.63, p. 199

(3d ed. 2008). It has also taken a dim view of our trading 

partners’ adoption of legislation incorporating elements

of international exhaustion. See Clapperton & Corones,

Locking in Customers, Locking Out Competitors: AntiCircumvention Laws in Australia and Their Potential 

Effect on Competition in High Technology Markets, 30

Melbourne U. L. Rev. 657, 664 (2006) (United States

expressed concern regarding international-exhaustion legislation in Australia); Montén, Comment, The Inconsistency 

Between Section 301 and TRIPS: Counterproductive 

With Respect to the Future of International Protection

of Intellectual Property Rights? 9 Marq. Intellectual 

—————— 

15The Court states that my “reliance on the Solicitor General’s position in Quality King is undermined by his agreement in that case with 

[the] reading of §109(a)” that the Court today adopts. Ante, at 33. The 

United States’ principal concern in both Quality King and this case, 

however, has been to protect copyright owners “right to prevent paral ’

lel imports.” Brief for United States as Amicus Curiae in Quality King, 

O. T. 1997, No. 96–1470, p. 6 (hereinafter Quality King Brief). See also 

Brief for United States as Amicus Curiae 14 (arguing that Kirtsaeng’s 

interpretation of §109(a), which the Court adopts, would “subver[t] 

Section 602(a)(1)’s ban on unauthorized importation”). In Quality King, 

the Solicitor General urged this Court to hold that §109(a)’s codification

of the first sale doctrine does not limit the right to control importation

set forth in §602(a). Quality King Brief 7–30. After Quality King

rejected that contention, the United States reconsidered its position,

and it now endorses the interpretation of the §109(a) phrase “lawfully 

made under this title” I would adopt. Brief for United States as Amicus 

Curiae 6–7, 13–14. 

­
 

 

22 KIRTSAENG v. JOHN WILEY & SONS, INC. 

GINSBURG, J., dissenting 

Property L. Rev. 387, 417–418 (2005) (same with respect 

to New Zealand and Taiwan).

Even if the text and history of the Copyright Act were ambiguous on the answer to the question this case presents—

which they are not, see Parts II–III, supra16—I 

would resist a holding out of accord with the firm position 

the United States has taken on exhaustion in international negotiations. Quality King, I acknowledge, discounted 

the Government’s concerns about potential inconsistency 

with United States obligations under certain bilateral 

trade agreements. See 523 U. S., at 153–154. See also 

Quality King Brief 22–24 (listing the agreements). That 

decision, however, dealt only with copyright-protected 

products made in the United States. See 523 U. S., at 154 

(GINSBURG, J., concurring). Quality King left open the

question whether owners of U. S. copyrights could retain 

control over the importation of copies manufactured and 

sold abroad—a point the Court obscures, see ante, at 33 

(arguing that Quality King “significantly eroded” the

national-exhaustion principle that, in my view, §602(a)(1)

embraces). The Court today answers that question with a

resounding “no,” and in doing so, it risks undermining the

United States’ credibility on the world stage. While the 

Government has urged our trading partners to refrain

from adopting international-exhaustion regimes that could 

benefit consumers within their borders but would impact 

adversely on intellectual-property producers in the United

States, the Court embraces an international-exhaustion 

rule that could benefit U. S. consumers but would likely 

—————— 

16Congress hardly lacks capacity to provide for international exhaustion when that is its intent. Indeed, Congress has expressly provided

for international exhaustion in the narrow context of semiconductor 

chips embodying protected “mask works.” See 17 U. S. C. §§905(2), 

906(b). See also 2 M. Nimmer & D. Nimmer, Copyright §8A.06[E], 

p. 8A–37 (2012) (hereinafter Nimmer) (“[T]he first sale doctrine under

[§906(b)] expressly immunizes unauthorized importation.”). 
 

Cite as: 568 U. S. ____ (2013) 23 

GINSBURG, J., dissenting 

disadvantage foreign holders of U. S. copyrights. This 

dissonance scarcely enhances the United States’ “role as a

trusted partner in multilateral endeavors.” Vimar Seguros 

y Reaseguros, S. A. v. M/V Sky Reefer, 515 U. S. 528, 

539 (1995). 

V 

I turn now to the Court’s justifications for a decision 

difficult to reconcile with the Copyright Act’s text and 

history. 

A 

The Court asserts that its holding “is consistent with

antitrust laws that ordinarily forbid market divisions.” 

Ante, at 32. See also ante, at 18 (again referring to antitrust principles). Section 602(a)(1), however, read as I do

and as the Government does, simply facilitates copyright 

owners’ efforts to impose “vertical restraints” on distributors of copies of their works. See Forsyth & Rothnie 435

(“Parallel importation restrictions enable manufacturers 

and distributors to erect ‘vertical restraints’ in the market 

through exclusive distribution agreements.”). See generally Leegin Creative Leather Products, Inc. v. PSKS, Inc., 

551 U. S. 877 (2007) (discussing vertical restraints). We 

have held that vertical restraints are not per se illegal

under §1 of the Sherman Act, 15 U. S. C. §1, because such

“restraints can have procompetitive effects.” 551 U. S., at 

881–882.17 

—————— 

17Despite the Court’s suggestion to the contrary, this case in no 

way implicates the per se antitrust prohibition against horizontal 

“ ‘[a]greements between competitors to allocate territories to minimize

competition.’ ” Ante, at 32 (quoting Palmer v. BRG of Ga., Inc., 498 

U. S. 46, 49 (1990) (per curiam)). Wiley is not requesting authority to

enter into collusive agreements with other textbook publishers that 

would, for example, make Wiley the exclusive supplier of textbooks 

on particular subjects within particular geographic regions. Instead, 

Wiley asserts no more than the prerogative to impose vertical restraints 
 

 

 

24 KIRTSAENG v. JOHN WILEY & SONS, INC. 

GINSBURG, J., dissenting 

B 

The Court sees many “horribles” following from a holding that the §109(a) phrase “lawfully made under this 

title” does not encompass foreign-made copies. Ante, at 22 

(internal quotation marks omitted). If §109(a) excluded 

foreign-made copies, the Court fears, then copyright owners could exercise perpetual control over the downstream

distribution or public display of such copies. A ruling in

Wiley’s favor, the Court asserts, would shutter libraries, 

put used-book dealers out of business, cripple art museums, and prevent the resale of a wide range of consumer 

goods, from cars to calculators. Ante, at 19–22. See also 

ante, at 2–3 (KAGAN, J., concurring) (expressing concern 

about “imposing downstream liability on those who purchase and resell in the United States copies that happen

to have been manufactured abroad”). Copyright law and 

precedent, however, erect barriers to the anticipated 

horribles.18 

1 

Recognizing that foreign-made copies fall outside the

ambit of §109(a) would not mean they are forever free of

the first sale doctrine. As earlier observed, see supra, at 2, 

the Court stated that doctrine initially in its 1908 Bobbs-

—————— 

on the distribution of its own textbooks. See Hovenkamp, Post-Sale 

Restraints and Competitive Harm: The First Sale Doctrine in Perspective, 66 N. Y. U. Ann. Survey Am. L. 487, 488 (2011) (“vertical re

straints” include “limits [on] the way a seller’s own product can be 

distributed”). 18As the Court observes, ante, at 32–33, the United States stated at 

oral argument that the types of “horribles” predicted in the Court’s 

opinion would, if they came to pass, be “worse than the frustration of 

market segmentation” that will result from the Court’s interpretation

of §109(a). Tr. of Oral Arg. 51. The United States, however, recognized 

that this purported dilemma is a false one. As the United States 

explained, the Court’s horribles can be avoided while still giving meaningful effect to §602(a)(1)’s ban on unauthorized importation. Ibid. 

­
 

 

Cite as: 568 U. S. ____ (2013) 25 

GINSBURG, J., dissenting 

Merrill decision. At that time, no statutory provision

expressly codified the first sale doctrine. Instead, copyright law merely provided that copyright owners had “the 

sole liberty of printing, reprinting, publishing, completing, 

copying, executing, finishing, and vending” their works.

Copyright Act of 1891, §1, 26 Stat. 1107. 

In Bobbs-Merrill, the Court addressed the scope of the

statutory right to “ven[d].” In granting that right, the

Court held, Congress did not intend to permit copyright

owners “to fasten . . . a restriction upon the subsequent

alienation of the subject-matter of copyright after the

owner had parted with the title to one who had acquired 

full dominion over it and had given a satisfactory price for

it.” 210 U. S., at 349–350. “[O]ne who has sold a copyrighted article . . . without restriction,” the Court explained, “has parted with all right to control the sale of it.” 

Id., at 350. Thus, “[t]he purchaser of a book, once sold by

authority of the owner of the copyright, may sell it again,

although he could not publish a new edition of it.” Ibid. 

Under the logic of Bobbs-Merrill, the sale of a foreignmanufactured copy in the United States carried out with

the copyright owner’s authorization would exhaust the 

copyright owner’s right to “vend” that copy. The copy

could thenceforth be resold, lent out, or otherwise redistributed without further authorization from the copyright 

owner. Although §106(3) uses the word “distribute” rather 

than “vend,” there is no reason to think Congress intended 

the word “distribute” to bear a meaning different from the 

construction the Court gave to the word “vend” in BobbsMerrill. See ibid. (emphasizing that the question before 

the Court was “purely [one] of statutory construction”).19 

—————— 

19 It appears that the Copyright Act of 1976 omitted the word “vend”

and introduced the word “distribute” to avoid the “redundan[cy]” 

present in pre-1976 law. Copyright Law Revision: Report of the Register of Copyrights on the General Revision of the U. S. Copyright Law,

87th Cong., 1st Sess., 21 (H. R. Judiciary Comm. Print 1961) (noting 
 

 

26 KIRTSAENG v. JOHN WILEY & SONS, INC. 

GINSBURG, J., dissenting 

Thus, in accord with Bobbs-Merrill, the first authorized 

distribution of a foreign-made copy in the United States 

exhausts the copyright owner’s distribution right under

§106(3). After such an authorized distribution, a library

may lend, or a used-book dealer may resell, the foreignmade copy without seeking the copyright owner’s permission. Cf. ante, at 19–21. 

For example, if Wiley, rather than Kirtsaeng, had 

imported into the United States and then sold the foreignmade textbooks at issue in this case, Wiley’s §106(3) distribution right would have been exhausted under the 

rationale of Bobbs-Merrill. Purchasers of the textbooks 

would thus be free to dispose of the books as they wished

without first gaining a license from Wiley.

This line of reasoning, it must be acknowledged, significantly curtails the independent effect of §109(a). If, as I 

maintain, the term “distribute” in §106(3) incorporates the 

first sale doctrine by virtue of Bobbs-Merrill, then 

§109(a)’s codification of that doctrine adds little to the 

regulatory regime.20 Section 109(a), however, does serve 

—————— 

that the exclusive rights to “publish” and “vend” works under the 

Copyright Act of 1947, §1(a), 61 Stat. 652–653, were “redundant”). 20My position that Bobbs-Merrill lives on as a limiting construction of 

the §106(3) distribution right does not leave §109(a) with no work to do. 

There can be little doubt that the books at issue in Bobbs-Merrill were 

published and first sold in the United States. See Bobbs-Merrill Co. v. 

Straus, 139 F. 155, 157 (CC SDNY 1905) (the publisher claiming copyright infringement in Bobbs-Merrill was incorporated and had its 

principal office in Indiana). See also Copyright Act of 1891, §3, 26 Stat.

1107–1108 (generally prohibiting importation, even by the copyright

owner, of foreign-manufactured copies of copyrighted books); 4 Patry 

§13:40, at 13–111 (under the Copyright Act of 1891, “copies of books by

both foreign and U. S. authors had to be printed in the United States”). 

But cf. ante, at 18 (asserting, without acknowledging the 1891 Copyright Act’s general prohibition against the importation of foreign-made 

copies of copyrighted books, that the Court is unable to find any “geo

graphical distinctions . . . in Bobbs-Merrill”). Thus, exhaustion occurs 

under Bobbs-Merrill only when a copy is distributed within the United 

­
 

Cite as: 568 U. S. ____ (2013) 27 

GINSBURG, J., dissenting 

as a statutory bulwark against courts deviating from 

Bobbs-Merrill in a way that increases copyright owners’ 

control over downstream distribution, and legislative

history indicates that is precisely the role Congress intended §109(a) to play. Congress first codified the first 

sale doctrine in §41 of the Copyright Act of 1909, 35 Stat. 

1084.21 It did so, the House Committee Report on the

1909 Act explains, “in order to make . . . clear that [Congress had] no intention [of] enlarg[ing] in any way the 

construction to be given to the word ‘vend.’” H. R. Rep. 

No. 2222, 60th Cong., 2d Sess., 19 (1909). According to the

Committee Report, §41 was “not intended to change [existing law] in any way.” Ibid. The position I have stated and 

explained accords with this expression of congressional 

intent. In enacting §41 and its successors, I would hold,

Congress did not “change . . . existing law,” ibid., by stripping the word “vend” (and thus its substitute “distribute”)

of the limiting construction imposed in Bobbs-Merrill. 

In any event, the reading of the Copyright Act to which

I subscribe honors Congress’ aim in enacting §109(a) 

while the Court’s reading of the Act severely diminishes 

§602(a)(1)’s role. See supra, at 10–12. My position in no 

way tugs against the principle underlying §109(a)—i.e., 

that certain conduct by the copyright owner exhausts the 

—————— 

States with the copyright owner’s permission, not when it is distributed 

abroad. But under §109(a), as interpreted in Quality King, any author

ized distribution of a U. S.-made copy, even a distribution occurring in 

a foreign country, exhausts the copyright owner’s distribution right 

under §106(3). See 523 U. S., at 145, n. 14. Section 109(a) therefore 

provides for exhaustion in a circumstance not reached by Bobbs-Merrill. 21Section 41 of the 1909 Act provided: “[N]othing in this Act shall be

deemed to forbid, prevent, or restrict the transfer of any copy of a 

copyrighted work the possession of which has been lawfully obtained.”

35 Stat. 1084. This language was repeated without material change in

§27 of the Copyright Act of 1947, 61 Stat. 660. As noted above, see 

supra, at 2, 17 U. S. C. §109(a) sets out the current codification of the 

first sale doctrine. 

­
 

 

 

 

28 KIRTSAENG v. JOHN WILEY & SONS, INC. 

GINSBURG, J., dissenting 

owner’s §106(3) distribution right. The Court, in contrast, 

fails to give meaningful effect to Congress’ manifest intent

in §602(a)(1) to grant copyright owners the right to control 

the importation of foreign-made copies of their works. 

2 

Other statutory prescriptions provide further protection 

against the absurd consequences imagined by the Court.

For example, §602(a)(3)(C) permits “an organization operated for scholarly, educational, or religious purposes” to

import, without the copyright owner’s authorization, up to

five foreign-made copies of a non-audiovisual work— 

notably, a book—for “library lending or archival purposes.” 

But cf. ante, at 19–20 (suggesting that affirming the Second Circuit’s decision might prevent libraries from lending foreign-made books).22 

The Court also notes that amici representing art museums fear that a ruling in Wiley’s favor would prevent 

museums from displaying works of art created abroad. 

Ante, at 22 (citing Brief for Association of Art Museum

Directors et al.). These amici observe that a museum’s 

right to display works of art often depends on 17 U. S. C.

§109(c). See Brief for Association of Art Museum Directors et al. 11–13.23 That provision addresses exhaustion of 

—————— 

22A group of amici representing libraries expresses the concern 

that lower courts might interpret §602(a)(3)(C) as authorizing only 

the importing, but not the lending, of foreign-made copies of 

non-audiovisual works. See Brief for American Library Association 

et al. 20. The United States maintains, and I agree, however, that

§602(a)(3)(C) “is fairly (and best) read as implicitly authorizing lending,

in addition to importation, of all works other than audiovisual works.”

Brief for United States as Amicus Curiae 30, n. 6. 23Title 17 U. S. C. §109(c) provides: “Notwithstanding the provisions 

of section 106(5), the owner of a particular copy lawfully made under 

this title, or any person authorized by such owner, is entitled, without 

the authority of the copyright owner, to display that copy publicly, 

either directly or by the projection of no more than one image at a time,

to viewers present at the place where the copy is located.” 
 

 

 

Cite as: 568 U. S. ____ (2013) 29 

GINSBURG, J., dissenting 

a copyright owner’s exclusive right under §106(5) to

publicly display the owner’s work. Because §109(c), like

§109(a), applies only to copies “lawfully made under this

title,” amici contend that a ruling in Wiley’s favor would 

prevent museums from invoking §109(c) with respect to 

foreign-made works of art. Id., at 11–13.24 

Limiting §109(c) to U. S.-made works, however, does not 

bar art museums from lawfully displaying works made in 

other countries. Museums can, of course, seek the copyright owner’s permission to display a work. Furthermore, 

the sale of a work of art to a U. S. museum may carry with

it an implied license to publicly display the work. See 2 

Patry §5:131, at 5–280 (“[C]ourts have noted the potential 

availability of an implied nonexclusive licens[e] when the

circumstances . . . demonstrate that the parties intended 

that the work would be used for a specific purpose.”).

Displaying a work of art as part of a museum exhibition

might also qualify as a “fair use” under 17 U. S. C. §107.

Cf. Bouchat v. Baltimore Ravens Ltd. Partnership, 619 

F. 3d 301, 313–316 (CA4 2010) (display of copyrighted logo

in museum-like exhibition constituted “fair use”).

The Court worries about the resale of foreign-made

consumer goods “contain[ing] copyrightable software programs or packaging.” Ante, at 21. For example, the Court

observes that a car might be programmed with diverse 

forms of software, the copyrights to which might be

owned by individuals or entities other than the manufacturer of the car. Ibid. Must a car owner, the Court 

asks, obtain permission from all of these various copyright 

owners before reselling her car? Ibid. Although this

question strays far from the one presented in this case and

briefed by the parties, principles of fair use and implied 

—————— 

24The word “copy,” as it appears in §109(c), applies to the original of a

work of art because the Copyright Act defines the term “copies” to

“includ[e] the material object . . . in which the work is first fixed.” §101. 
 

 

30 KIRTSAENG v. JOHN WILEY & SONS, INC. 

GINSBURG, J., dissenting 

license (to the extent that express licenses do not exist) 

would likely permit the car to be resold without the copyright owners’ authorization.25 

Most telling in this regard, no court, it appears, has

been called upon to answer any of the Court’s “horribles”

in an actual case. Three decades have passed since a

federal court first published an opinion reading §109(a) as

applicable exclusively to copies made in the United States.

See Columbia Broadcasting System, Inc. v. Scorpio Music 

Distributors, Inc., 569 F. Supp. 47, 49 (ED Pa. 1983), 

summarily aff ’d, 738 F. 2d 424 (CA3 1984) (table). Yet 

Kirtsaeng and his supporting amici cite not a single case

in which the owner of a consumer good authorized for sale 

in the United States has been sued for copyright infringement after reselling the item or giving it away as a gift or

to charity. The absence of such lawsuits is unsurprising. 

Routinely suing one’s customers is hardly a best business 

—————— 

25Principles of fair use and implied license may also allow a U. S.

tourist “who buys a copyrighted work of art, a poster, or . . . a bumper

sticker” abroad to publicly “display it in America without the copyright 

owner’s further authorization.” Ante, at 15. (The tourist could lawfully

bring the work of art, poster, or bumper sticker into the United States

under 17 U. S. C. §602(a)(3)(B), which provides that §602(a)(1)’s importation ban does not apply to “importation . . . by any person arriving

from outside the United States . . . with respect to copies . . . forming 

part of such person’s personal baggage.”). Furthermore, an individual 

clearly would not incur liability for infringement merely by displaying a

foreign-made poster or other artwork in her home. See §106(5) (granting the owners of copyrights in “literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural 

works” the exclusive right “to display the copyrighted work publicly” 

(emphasis added)). See also §101 (a work is displayed “publicly” if it is

displayed “at a place open to the public or at any place where a substantial number of persons outside of a normal circle of a family and its 

social acquaintances is gathered” (emphasis added)). Cf. 2 Nimmer 

§8.14[C][1], at 8–192.2(1) (“[A] performance limited to members of 

the family and invited guests is not a public performance.” (footnote 

omitted)). 
 

 

Cite as: 568 U. S. ____ (2013) 31 

GINSBURG, J., dissenting 

practice.26 Manufacturers, moreover, may be hesitant to 

do business with software programmers taken to suing 

consumers. Manufacturers may also insist that software programmers agree to contract terms barring such

lawsuits. 

The Court provides a different explanation for the

absence of the untoward consequences predicted in its

opinion—namely, that lower court decisions regarding the

scope of §109(a)’s first sale prescription have not been

uniform. Ante, at 23. Uncertainty generated by these 

conflicting decisions, the Court notes, may have deterred

some copyright owners from pressing infringement claims. 

Ante, at 23–24. But if, as the Court suggests, there are a

multitude of copyright owners champing at the bit to bring

lawsuits against libraries, art museums, and consumers in 

an effort to exercise perpetual control over the downstream distribution and public display of foreign-made 

copies, might one not expect that at least a handful of such

lawsuits would have been filed over the past 30 years? 

The absence of such suits indicates that the “practical 

problems” hypothesized by the Court are greatly exaggerated. Ante, at 24.27 They surely do not warrant disregard­

—————— 

26Exerting extensive control over secondary markets may not always

be in a manufacturer’s best interest. Carmakers, for example, often 

trumpet the resale value of their vehicles. See, e.g., Nolan, UD grad

leads Cadillac marketing, Dayton Daily News, Apr. 2, 2009, p. A8

(“Cadillac plays up its warranty coverage and reliable resale value to 

prospective customers.”). If the transaction costs of reselling vehicles

were to rise, consumers’ perception of a new car’s value, and thus the 

price they are willing to pay for such a car, might fall—an outcome

hardly favorable to automobile manufacturers. 27 It should not be overlooked that the ability to prevent importation

of foreign-made copies encourages copyright owners such as Wiley to

offer copies of their works at reduced prices to consumers in less developed countries who might otherwise be unable to afford them. The 

Court’s holding, however, prevents copyright owners from barring the 

importation of such low-priced copies into the United States, where 

they will compete with the higher priced editions copyright owners 
 

32 KIRTSAENG v. JOHN WILEY & SONS, INC. 

GINSBURG, J., dissenting 

ing Congress’ intent, expressed in §602(a)(1), to grant 

copyright owners the authority to bar the importation of

foreign-made copies of their works. Cf. Hartford Underwriters Ins. Co. v. Union Planters Bank, N. A., 530 U. S. 1, 

6 (2000) (“[W]hen the statute’s language is plain, the sole 

function of the courts—at least where the disposition

required by the text is not absurd—is to enforce it according to its terms.” (internal quotation marks omitted)). 

VI 

To recapitulate, the objective of statutory interpretation

is “to give effect to the intent of Congress.” American 

Trucking Assns., 310 U. S., at 542. Here, two congressional aims are evident. First, in enacting §602(a)(1), Congress intended to grant copyright owners permission to

segment international markets by barring the importation 

of foreign-made copies into the United States. Second, as 

codification of the first sale doctrine underscores, Congress 

did not want the exclusive distribution right conferred in

§106(3) to be boundless. Instead of harmonizing these 

objectives, the Court subordinates the first entirely to the 

second. It is unsurprising that none of the three major 

treatises on U. S. copyright law embrace the Court’s construction of §109(a). See 2 Nimmer §8.12[B][6][c], at 

—————— 

make available for sale in this country. To protect their profit margins 

in the U. S. market, copyright owners may raise prices in less developed countries or may withdraw from such markets altogether. See 

Brief for United States as Amicus Curiae 26; Brief for Text and Academic Authors Association as Amicus Curiae 12; Brief for Association of 

American Publishers as Amicus Curiae 37. See also Chiappetta 357–

358 (a rule of national exhaustion “encourages entry and participation

in developing markets at lower, locally more affordable prices by

eliminating them as risky sources of cheaper parallel imports back into 

premium markets”). Such an outcome would disserve consumers—and 

especially students—in developing nations and would hardly advance 

the “American foreign policy goals” of supporting education and economic development in such countries. Quality King Brief 25–26. 
 

Cite as: 568 U. S. ____ (2013) 33 

GINSBURG, J., dissenting 

8–184.34 to 8–184.35; 2 Goldstein §7.6.1.2(a), at 7:141; 4

Patry §§13:22, 13:44, 13:44.10. 

Rather than adopting the very international-exhaustion

rule the United States has consistently resisted in 

international-trade negotiations, I would adhere to the 

national-exhaustion framework set by the Copyright 

Act’s text and history. Under that regime, codified in 

§602(a)(1), Kirtsaeng’s unauthorized importation of the 

foreign-made textbooks involved in this case infringed 

Wiley’s copyrights. I would therefore affirm the Second 

Circuit’s judgment.