In a 6-3 ruling today, the Supreme Court held in Kirtsaeng v. John Wiley & Sons that the first sale doctrine, which fosters the creation of a secondary market in used copies of copyrighted works by forbidding infringement claims based on the sale or purchase of copies of copyrighted works, applies even if the copyrighted works were manufactured abroad. Public Citizen filed an amicus brief supporting application of the first sale doctrine to copies made abroad when the issue was first before the Court in Costco Wholesale Corp. v Omega, which was affirmed by an equally divided court. I think all of us came out of the oral argument worried about the outcome. The defense of the first sale doctrine's applicability was fundamentally and, I thought, brilliantly reconceived by Kirtsaeng's counsel, Joshua Rosenkranz (our involvement this time was limited to hosting a moot court for him), and the results of his creativity are reflected in today's decision.
