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1351KIRTSAENG v. JOHN WILEY & SONS, INC.Cite as 133 S.Ct. 1351 (2013)

further proceedings consistent with thisopinion.

It is so ordered.

,

Supap KIRTSAENG, dbaBluechristine99,

Petitioner

v.

JOHN WILEY & SONS, INC.No. 11–697.

Argued Oct. 29, 2012.

Decided March 19, 2013.

Background: Publisher filed actionagainst domestic reseller of textbooksmanufactured and first sold abroad, alleg-ing copyright infringement. The UnitedStates District Court for the Southern Dis-trict of New York, Donald C. Pogue, Judgeof the United States Court of InternationalTrade, sitting by designation, 2009 WL3364037, awarded statutory damages toplaintiff. Defendant appealed. The UnitedStates Court of Appeals for the SecondCircuit, Jose A. Cabranes, Circuit Judge,654 F.3d 210, affirmed. Certiorari wasgranted.

Holding: The Supreme Court, JusticeBreyer, held that the first sale doctrine, ascodified in the Copyright Act, applies tocopies of copyrighted works lawfully madeabroad, abrogating Omega S.A. v. CostcoWholesale Corp., 541 F.3d 982, DenbicareU.S.A. Inc. v. Toys ‘‘R’’ Us, Inc., 84 F.3d1143, and Columbia Broadcasting System,Inc. v. Scorpio Music Distributors, Inc.,569 F.Supp. 47.

Reversed and remanded.

Justice Kagan filed a concurring opinion,in which Justice Alito joined.

Justice Ginsburg filed a dissenting opinion,which Justice Kennedy joined and JusticeScalia joined in part.

1. Copyrights and Intellectual PropertyO38.5

The first sale doctrine, as codified inthe Copyright Act to provide that the own-er of a particular copy of a copyrightedwork ‘‘lawfully made under this title’’ isentitled, without the authority of the copy-right owner, to sell or otherwise dispose ofthe possession of that copy, applies to cop-ies lawfully made abroad; abrogating Ome-ga S.A. v. Costco Wholesale Corp., 541F.3d 982, Denbicare U.S.A. Inc. v. Toys‘‘R’’ Us, Inc., 84 F.3d 1143, and ColumbiaBroadcasting System, Inc. v. Scorpio Mu-sic Distributors, Inc., 569 F.Supp. 47. 17U.S.C.A. §§ 106(3), 109(a), 602(a)(1).

2. Statutes O1375

Courts normally presume that wordscarry the same meaning when they appearin different but related sections of an act.

3. Statutes O1384

When a statute covers an issue previ-ously governed by the common law, courtsmust presume that Congress intended toretain the substance of the common law.

4. Statutes O1158

No canon of interpretation forbids in-terpreting different words used in differ-ent parts of the same statute to meanroughly the same thing.

5. Courts O92

The Supreme Court is not necessarilybound by dicta should more complete ar-gument demonstrate that the dicta is notcorrect.

1352 133 SUPREME COURT REPORTER

Syllabus *

The ‘‘exclusive rights’’ that a copy-right owner has ‘‘to distribute copies TTT of[a] copyrighted work,’’ 17 U.S.C. § 106(3),are qualified by the application of severallimitations set out in §§ 107 through 122,including the ‘‘first sale’’ doctrine, whichprovides that ‘‘the owner of a particularcopy or phonorecord lawfully made underthis title TTT is entitled, without the au-thority of the copyright owner, to sell orotherwise dispose of the possession of thatcopy or phonorecord,’’ § 109(a). Import-ing a copy made abroad without the copy-right owner’s permission is an infringe-ment of § 106(3). See § 602(a)(1). InQuality King Distributors, Inc. v. L’anzaResearch Int’l, Inc., 523 U.S. 135, 145, 118S.Ct. 1125, 140 L.Ed.2d 254, this Courtheld that § 602(a)(1)’s reference to§ 106(3) incorporates the §§ 107 through122 limitations, including § 109’s ‘‘firstsale’’ doctrine. However, the copy inQuality King was initially manufactured inthe United States and then sent abroadand sold.

Respondent, John Wiley & Sons, Inc.,an academic textbook publisher, often as-signs to its wholly owned foreign subsid-iary (Wiley Asia) rights to publish, print,and sell foreign editions of Wiley’s Englishlanguage textbooks abroad. Wiley Asia’sbooks state that they are not to be taken(without permission) into the UnitedStates. When petitioner Kirtsaeng movedfrom Thailand to the United States tostudy mathematics, he asked friends andfamily to buy foreign edition English-lan-guage textbooks in Thai book shops, wherethey sold at low prices, and to mail them tohim in the United States. He then soldthe books, reimbursed his family andfriends, and kept the profit.

Wiley filed suit, claiming that Kirt-saeng’s unauthorized importation and re-sale of its books was an infringement ofWiley’s § 106(3) exclusive right to distrib-ute and § 602’s import prohibition. Kirt-saeng replied that because his books were‘‘lawfully made’’ and acquired legitimately,§ 109(a)’s ‘‘first sale’’ doctrine permittedimportation and resale without Wiley’s fur-ther permission. The District Court heldthat Kirtsaeng could not assert this de-fense because the doctrine does not applyto goods manufactured abroad. The jurythen found that Kirtsaeng had willfullyinfringed Wiley’s American copyrights andassessed damages. The Second Circuitaffirmed, concluding that § 109(a)’s ‘‘law-fully made under this title’’ language indi-cated that the ‘‘first sale’’ doctrine does notapply to copies of American copyrightedworks manufactured abroad.

Held : The ‘‘first sale’’ doctrine ap-plies to copies of a copyrighted work law-fully made abroad. Pp. 1357 – 1371.

(a) Wiley reads ‘‘lawfully made underthis title’’ to impose a geographical limita-tion that prevents § 109(a)’s doctrine fromapplying to Wiley Asia’s books. Kirt-saeng, however, reads the phrase as im-posing the non-geographical limitationmade ‘‘in accordance with’’ or ‘‘in compli-ance with’’ the Copyright Act, which wouldpermit the doctrine to apply to copies man-ufactured abroad with the copyright own-er’s permission. Pp. 1357 – 1358.

(b) Section 109(a)’s language, its con-text, and the ‘‘first sale’’ doctrine’s com-mon-law history favor Kirtsaeng’s reading.Pp. 1358 – 1367.

(1) Section 109(a) says nothing aboutgeography. ‘‘Under’’ can logically mean‘‘in accordance with.’’ And a nongeo-

* The syllabus constitutes no part of the opinionof the Court but has been prepared by theReporter of Decisions for the convenience of

the reader. See United States v. Detroit Tim-ber & Lumber Co., 200 U.S. 321, 337, 26 S.Ct.282, 50 L.Ed. 499.


graphical interpretation provides eachword in the phrase ‘‘lawfully made underthis title’’ with a distinct purpose: ‘‘lawful-ly made’’ suggests an effort to distinguishcopies that were made lawfully from thosethat were not, and ‘‘under this title’’ setsforth the standard of ‘‘lawful[ness]’’ (i.e.,the U.S. Copyright Act). This simplereading promotes the traditional copyrightobjective of combatting piracy and makesword-by-word linguistic sense.

In contrast, the geographical interpre-tation bristles with linguistic difficulties.Wiley first reads ‘‘under’’ to mean ‘‘in con-formance with the Copyright Act wherethe Copyright Act is applicable.’’ Wileythen argues that the Act ‘‘is applicable’’only in the United States. However, nei-ther ‘‘under’’ nor any other word in ‘‘law-fully made under this title’’ means‘‘where.’’ Nor can a geographical limita-tion be read into the word ‘‘applicable.’’The fact that the Act does not instantlyprotect an American copyright holder fromunauthorized piracy taking place abroaddoes not mean the Act is inapplicable tocopies made abroad. Indeed, § 602(a)(2)makes foreign-printed pirated copies sub-ject to the Copyright Act. And § 104 saysthat works ‘‘subject to protection’’ includeunpublished works ‘‘without regard to the[author’s] nationality or domicile,’’ andworks ‘‘first published’’ in any of the near-ly 180 nations that have signed a copyrighttreaty with the United States. Pp. 1358 –1360.

(2) Both historical and contemporarystatutory context indicate that Congressdid not have geography in mind when writ-ing the present version of § 109(a). Acomparison of the language in § 109(a)’spredecessor and the present provision sup-ports this conclusion. The former versionreferred to those who are not owners of acopy, but mere possessors who ‘‘lawfullyobtained’’ a copy, while the present versioncovers only owners of a ‘‘lawfully made’’

copy. This new language, including thefive words at issue, makes clear that alessee of a copy will not receive ‘‘first sale’’protection but one who owns a copy will beprotected, provided that the copy was‘‘lawfully made.’’ A nongeographical inter-pretation is also supported by other provi-sions of the present statute. For example,the ‘‘manufacturing clause,’’ which limitedimportation of many copies printed outsidethe United States, was phased out in aneffort to equalize treatment of copies madein America and copies made abroad. Butthat ‘‘equal treatment’’ principle is difficultto square with a geographical interpreta-tion that would grant an American copy-right holder permanent control over theAmerican distribution chain in respect tocopies printed abroad but not those print-ed in America. Finally, the Court normal-ly presumes that the words ‘‘lawfully madeunder this title’’ carry the same meaningwhen they appear in different but relatedsections, and it is unlikely that Congresswould have intended the consequencesproduced by a geographical interpretation.Pp. 1360 – 1362.

(3) A nongeographical reading is alsosupported by the canon of statutory inter-pretation that ‘‘when a statute covers anissue previously governed by the commonlaw,’’ it is presumed that ‘‘Congress in-tended to retain the substance of the com-mon law.’’ Samantar v. Yousuf, 560 U.S.––––, ––––, 130 S.Ct. 2278, 176 L.Ed.2d1047. The common-law ‘‘first sale’’ doc-trine, which has an impeccable historicpedigree, makes no geographical distinc-tions. Nor can such distinctions be foundin Bobbs–Merrill Co. v. Straus, 210 U.S.339, 28 S.Ct. 722, 52 L.Ed. 1086, wherethis Court first applied the ‘‘first sale’’doctrine, or in § 109(a)’s predecessor pro-vision, which Congress enacted a year la-ter. Pp. 1363 – 1364.


(4) Library associations, used-bookdealers, technology companies, consumer-goods retailers, and museums point to var-ious ways in which a geographical inter-pretation would fail to further basic consti-tutional copyright objectives, in particular‘‘promot[ing] the Progress of Science anduseful Arts,’’ Art. I, § 8, cl. 8. For exam-ple, a geographical interpretation of thefirst-sale doctrine would likely require li-braries to obtain permission before circu-lating the many books in their collectionsthat were printed overseas. Wiley coun-ters that such problems have not occurredin the 30 years since a federal court firstadopted a geographical interpretation.But the law has not been settled for solong in Wiley’s favor. The Second Circuitin this case was the first Court of Appealsto adopt a purely geographical interpreta-tion. Reliance on the ‘‘first sale’’ doctrineis also deeply embedded in the practices ofbooksellers, libraries, museums, and retail-ers, who have long relied on its protection.And the fact that harm has proved limitedso far may simply reflect the reluctance ofcopyright holders to assert geographicallybased resale rights. Thus, the practicalproblems described by petitioner and hisamici are too serious, extensive, and likelyto come about to be dismissed as insignifi-cant—particularly in light of the ever-growing importance of foreign trade toAmerica. Pp. 1364 – 1367.

(c) Several additional arguments thatWiley and the dissent make in support of ageographical interpretation are unpersua-sive. Pp. 1366 – 1371.

654 F.3d 210, reversed and remanded.

BREYER, J., delivered the opinion ofthe Court, in which ROBERTS, C.J., andTHOMAS, ALITO, SOTOMAYOR, andKAGAN, JJ., joined. KAGAN, J., filed aconcurring opinion, in which ALITO, J.,joined. GINSBURG, J., filed a dissentingopinion, in which KENNEDY, J., joined,

and in which SCALIA, J., joined except asto Parts III and V–B–1.

E. Joshua Rosenkranz, New York, NY,for Petitioner.

Theodore B. Olson, Washington, DC, forRespondent.

Sam P. Israel, Sam P. Israel, P.C., NewYork, NY, E. Joshua Rosenkranz, Counselof Record, Annette L. Hurst, Lisa T.Simpson, Orrick, Herrington & SutcliffeLLP, New York, NY, for Petitioner.

Theodore B. Olson, Counsel of Record,Matthew D. McGill, Scott P. Martin, Gib-son, Dunn & Crutcher LLP, Washington,DC, for Respondent.

For U.S. Supreme Court Briefs, See:

2012 WL 2641850 (Pet. Brief)

2012 WL 3836936 (Resp. Brief)

2012 WL 4713124 (Reply Brief)

Justice BREYER delivered the opinionof the Court.

Section 106 of the Copyright Act grants‘‘the owner of copyright under this title’’certain ‘‘exclusive rights,’’ including theright ‘‘to distribute copies TTT of the copy-righted work to the public by sale or othertransfer of ownership.’’ 17 U.S.C.§ 106(3). These rights are qualified, how-ever, by the application of various limita-tions set forth in the next several sectionsof the Act, §§ 107 through 122. Thosesections, typically entitled ‘‘Limitations onexclusive rights,’’ include, for example, theprinciple of ‘‘fair use’’ (§ 107), permissionfor 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 sec-tion 106(3) [the section that grants theowner exclusive distribution rights], the


owner of a particular copy or phonorec-ord lawfully made under this title TTT isentitled, without the authority of thecopyright owner, to sell or otherwisedispose of the possession of that copy orphonorecord.’’ (Emphasis added.)

Thus, even though § 106(3) forbids distri-bution of a copy of, say, the copyrightednovel Herzog without the copyright own-er’s permission, § 109(a) adds that, once acopy of Herzog has been lawfully sold (orits ownership otherwise lawfully trans-ferred), the buyer of that copy and subse-quent owners are free to dispose of it asthey wish. In copyright jargon, the ‘‘firstsale’’ has ‘‘exhausted’’ the copyright own-er’s § 106(3) exclusive distribution right.

What, however, if the copy of Herzogwas printed abroad and then initially soldwith the copyright owner’s permission?Does the ‘‘first sale’’ doctrine still apply?Is the buyer, like the buyer of a domes-tically manufactured copy, free to bringthe copy into the United States and dis-pose of it as he or she wishes?

To put the matter technically, an ‘‘im-portation’’ provision, § 602(a)(1), says that

‘‘[i]mportation into the United States,without the authority of the owner ofcopyright under this title, of copies TTT

of a work that have been acquired out-side the United States is an infringe-ment of the exclusive right to distributecopies TTT under section 106TTTT’’ 17U.S.C. § 602(a)(1) (2006 ed., Supp. V)(emphasis added).

Thus § 602(a)(1) makes clear that im-porting a copy without permission violatesthe owner’s exclusive distribution right.But in doing so, § 602(a)(1) refers explicit-ly to the § 106(3) exclusive distributionright. As we have just said, § 106 is by itsterms ‘‘[s]ubject to’’ the various doctrinesand principles contained in §§ 107 through122, including § 109(a)’s ‘‘first sale’’ limita-tion. Do those same modifications apply—

in particular, does the ‘‘first sale’’ modifica-tion apply—when considering whether§ 602(a)(1) prohibits importing a copy?

In Quality King Distributors, Inc. v.L’anza Research Int’l, Inc., 523 U.S. 135,145, 118 S.Ct. 1125, 140 L.Ed.2d 254(1998), we held that § 602(a)(1)’s referenceto § 106(3)’s exclusive distribution rightincorporates the later subsections’ limita-tions, including, in particular, the ‘‘firstsale’’ doctrine of § 109. Thus, it mightseem that, § 602(a)(1) notwithstanding,one who buys a copy abroad can freelyimport that copy into the United Statesand dispose of it, just as he could had hebought the copy in the United States.

But Quality King considered an in-stance in which the copy, though pur-chased abroad, was initially manufacturedin the United States (and then sent abroadand sold). This case is like Quality Kingbut for one important fact. The copies atissue here were manufactured abroad.That fact is important because § 109(a)says that the ‘‘first sale’’ doctrine appliesto ‘‘a particular copy or phonorecord law-fully made under this title.’’ And we mustdecide here whether the five words, ‘‘law-fully made under this title,’’ make a criticallegal difference.

Putting section numbers to the side, weask whether the ‘‘first sale’’ doctrine ap-plies to protect a buyer or other lawfulowner of a copy (of a copyrighted work)lawfully manufactured abroad. Can thatbuyer bring that copy into the UnitedStates (and sell it or give it away) withoutobtaining permission to do so from thecopyright owner? Can, for example,someone who purchases, say at a usedbookstore, a book printed abroad subse-quently resell it without the copyrightowner’s permission?

In our view, the answers to these ques-tions are, yes. We hold that the ‘‘first


sale’’ doctrine applies to copies of a copy-righted work lawfully made abroad.

I

A

Respondent, John Wiley & Sons, Inc.,publishes academic textbooks. Wiley ob-tains from its authors various foreign anddomestic copyright assignments, licensesand permissions—to the point that we can,for present purposes, refer to Wiley as therelevant American copyright owner. See654 F.3d 210, 213, n. 6 (C.A.2 2011). Wileyoften assigns to its wholly owned foreignsubsidiary, John Wiley & Sons (Asia) PteLtd., rights to publish, print, and sell Wi-ley’s English language textbooks abroad.App. to Pet. for Cert. 47a–48a. Each copyof a Wiley Asia foreign edition will likelycontain language making clear that thecopy is to be sold only in a particularcountry or geographical region outside theUnited States. 654 F.3d, at 213.

For example, a copy of Wiley’s Ameri-can edition says, ‘‘Copyright a 2008 JohnWiley & Sons, Inc. All rights reservedTTTT

Printed in the United States of America.’’J. Walker, Fundamentals of Physics, p. vi(8th ed. 2008). A copy of Wiley Asia’sAsian edition of that book says:

‘‘Copyright a 2008 John Wiley & Sons(Asia) Pte Ltd[.] All rights reserved.This book is authorized for sale in Eu-rope, Asia, Africa, and the Middle Eastonly and may be not exported out ofthese territories. Exportation from orimportation of this book to another re-gion without the Publisher’s authoriza-tion is illegal and is a violation of thePublisher’s rights. The Publisher maytake legal action to enforce itsrightsTTTT Printed in Asia.’’ J. Walk-er, Fundamentals of Physics, p. vi (8thed. 2008 Wiley Int’l Student ed.).

Both the foreign and the American copiessay:

‘‘No part of this publication may be re-produced, stored in a retrieval system,or transmitted in any form or by anymeans TTT except as permitted underSections 107 or 108 of the 1976 UnitedStates Copyright Act.’’ Compare, e.g.,ibid. (Int’l ed.), with Walker, supra, at vi(American ed.).

The upshot is that there are two essen-tially equivalent versions of a Wiley text-book, 654 F.3d, at 213, each version manu-factured and sold with Wiley’s permission:(1) an American version printed and soldin the United States, and (2) a foreignversion manufactured and sold abroad.And Wiley makes certain that copies of thesecond version state that they are not tobe taken (without permission) into theUnited States. Ibid.

Petitioner, Supap Kirtsaeng, a citizen ofThailand, moved to the United States in1997 to study mathematics at Cornell Uni-versity. Ibid. He paid for his educationwith the help of a Thai Government schol-arship which required him to teach inThailand for 10 years on his return. Brieffor Petitioner 7. Kirtsaeng successfullycompleted his undergraduate courses atCornell, successfully completed a Ph.D.program in mathematics at the Universityof Southern California, and then, as prom-ised, returned to Thailand to teach. Ibid.While he was studying in the UnitedStates, Kirtsaeng asked his friends andfamily in Thailand to buy copies of foreignedition English-language textbooks at Thaibook shops, where they sold at low prices,and mail them to him in the United States.Id., at 7–8. Kirtsaeng would then sellthem, reimburse his family and friends,and keep the profit. App. to Pet. for Cert.48a–49a.


B

In 2008 Wiley brought this federal law-suit against Kirtsaeng for copyright in-fringement. 654 F.3d, at 213. Wileyclaimed that Kirtsaeng’s unauthorized im-portation of its books and his later resaleof those books amounted to an infringe-ment of Wiley’s § 106(3) exclusive right todistribute as well as § 602’s related importprohibition. 17 U.S.C. §§ 106(3) (2006ed.), 602(a) (2006 ed., Supp. V). See also§ 501 (2006 ed.) (authorizing infringementaction). App. 204–211. Kirtsaeng repliedthat the books he had acquired were‘‘ ‘lawfully made’ ’’ and that he had ac-quired them legitimately. Record in No.1:08–CV–7834–DCP (SDNY), Doc. 14, p. 3.Thus, in his view, § 109(a)’s ‘‘first sale’’doctrine permitted him to resell or other-wise dispose of the books without the copy-right owner’s further permission. Id., at2–3.

The District Court held that Kirtsaengcould not assert the ‘‘first sale’’ defensebecause, in its view, that doctrine does notapply to ‘‘foreign-manufactured goods’’(even if made abroad with the copyrightowner’s permission). App. to Pet. forCert. 72a. The jury then found that Kirt-saeng had willfully infringed Wiley’sAmerican copyrights by selling and im-porting without authorization copies ofeight of Wiley’s copyrighted titles. And itassessed statutory damages of $600,000($75,000 per work). 654 F.3d, at 215.

On appeal, a split panel of the SecondCircuit agreed with the District Court.Id., at 222. It pointed out that § 109(a)’s‘‘first sale’’ doctrine applies only to ‘‘theowner of a particular copy TTT lawfullymade under this title.’’ Id., at 218–219(emphasis added). And, in the majority’sview, this language means that the ‘‘firstsale’’ doctrine does not apply to copies ofAmerican copyrighted works manufac-tured abroad. Id., at 221. A dissenting

judge thought that the words ‘‘lawfullymade under this title’’ do not refer ‘‘to aplace of manufacture’’ but rather ‘‘focu[s]on whether a particular copy was manufac-tured lawfully under’’ America’s copyrightstatute, and that ‘‘the lawfulness of themanufacture of a particular copy should bejudged by U.S. copyright law.’’ Id., at 226(opinion of Murtha, J.).

We granted Kirtsaeng’s petition for cer-tiorari to consider this question in light ofdifferent views among the Circuits. Com-pare id., at 221 (case below) (‘‘first sale’’doctrine does not apply to copies manufac-tured outside the United States), withOmega S.A. v. Costco Wholesale Corp., 541F.3d 982, 986 (C.A.9 2008) (‘‘first sale’’doctrine applies to copies manufacturedoutside the United States only if an au-thorized first sale occurs within the UnitedStates), aff’d by an equally divided court,562 U.S. ––––, 131 S.Ct. 565, 178 L.Ed.2d470 (2010), and Sebastian Int’l, Inc. v.Consumer Contacts (PTY) Ltd., 847 F.2d1093, 1098, n. 1 (C.A.3 1988) (limitation ofthe first sale doctrine to copies made with-in the United States ‘‘does not fit comfort-ably within the scheme of the CopyrightAct’’).

II

We must decide whether the words‘‘lawfully made under this title’’ restrictthe scope of § 109(a)’s ‘‘first sale’’ doctrinegeographically. The Second Circuit, theNinth Circuit, Wiley, and the SolicitorGeneral (as amicus) all read those wordsas imposing a form of geographical limita-tion. The Second Circuit held that theylimit the ‘‘first sale’’ doctrine to particularcopies ‘‘made in territories in which theCopyright Act is law,’’ which (the Circuitsays) are copies ‘‘manufactured domestical-ly,’’ 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 inconformance with the [United States]Copyright Act where the Copyright Act isapplicable,’’ which (Wiley says) means itdoes not apply to copies made ‘‘outside theUnited States’’ and at least not to ‘‘foreignproduction of a copy for distribution exclu-sively abroad.’’ Brief for Respondent 15–16. Similarly, the Solicitor General saysthat those five words limit the ‘‘first sale’’doctrine’s applicability to copies ‘‘ ‘madesubject to and in compliance with [theCopyright Act],’ ’’ which (the Solicitor Gen-eral says) are copies ‘‘made in the UnitedStates.’’ Brief for United States as Ami-cus Curiae 5 (hereinafter Brief for UnitedStates) (emphasis added). And the NinthCircuit has held that those words limit the‘‘first sale’’ doctrine’s applicability (1) tocopies lawfully made in the United States,and (2) to copies lawfully made outside theUnited States but initially sold in the Unit-ed States with the copyright owner’s per-mission. Denbicare U.S.A. Inc. v. Toys‘‘R’’ Us, Inc., 84 F.3d 1143, 1149–1150(1996).

Under any of these geographical inter-pretations, § 109(a)’s ‘‘first sale’’ doctrinewould not apply to the Wiley Asia books atissue here. And, despite an Americancopyright owner’s permission to make cop-ies abroad, one who buys a copy of anysuch book or other copyrighted work—whether at a retail store, over the Inter-net, or at a library sale—could not resell(or otherwise dispose of) that particularcopy without further permission.

Kirtsaeng, however, reads the words‘‘lawfully made under this title’’ as impos-ing a non-geographical limitation. Hesays that they mean made ‘‘in accordancewith’’ or ‘‘in compliance with’’ the Copy-right Act. Brief for Petitioner 26. In thatcase, § 109(a)’s ‘‘first sale’’ doctrine wouldapply to copyrighted works as long astheir manufacture met the requirements of

American copyright law. In particular,the doctrine would apply where, as here,copies are manufactured abroad with thepermission of the copyright owner. See§ 106 (referring to the owner’s right toauthorize).

[1] In our view, § 109(a)’s language, itscontext, and the common-law history of the‘‘first sale’’ doctrine, taken together, favora non-geographical interpretation. Wealso doubt that Congress would have in-tended to create the practical copyright-related harms with which a geographicalinterpretation would threaten ordinaryscholarly, artistic, commercial, and con-sumer activities. See Part II–D, infra.We consequently conclude that Kirtsaeng’snongeographical reading is the betterreading of the Act.

A

The language of § 109(a) read literallyfavors Kirtsaeng’s nongeographical inter-pretation, namely, that ‘‘lawfully made un-der this title’’ means made ‘‘in accordancewith’’ or ‘‘in compliance with’’ the Copy-right Act. The language of § 109(a) saysnothing about geography. The word ‘‘un-der’’ can mean ‘‘[i]n accordance with.’’ 18Oxford English Dictionary 950 (2ded.1989). See also Black’s Law Dictionary1525 (6th ed. 1990) (‘‘according to’’). Anda nongeographical interpretation provideseach word of the five-word phrase with adistinct purpose. The first two words ofthe phrase, ‘‘lawfully made,’’ suggest aneffort to distinguish those copies that weremade 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 sim-ple, it promotes a traditional copyright ob-jective (combatting piracy), and it makesword-by-word linguistic sense.

The geographical interpretation, howev-er, bristles with linguistic difficulties. It


gives the word ‘‘lawfully’’ little, if any,linguistic work to do. (How could a bookbe un lawfully ‘‘made under this title’’?) Itimports geography into a statutory provi-sion that says nothing explicitly about it.And it is far more complex than may atfirst appear.

To read the clause geographically, Wi-ley, like the Second Circuit and the Solici-tor General, must first emphasize the word‘‘under.’’ Indeed, Wiley reads ‘‘under thistitle’’ to mean ‘‘in conformance with theCopyright Act where the Copyright Act isapplicable.’’ Brief for Respondent 15.Wiley must then take a second step, argu-ing that the Act ‘‘is applicable’’ only in theUnited States. Ibid. And the SolicitorGeneral must do the same. See Brief forUnited States 6 (‘‘A copy is ‘lawfully madeunder this title’ if Title 17 governs thecopy’s creation and the copy is made incompliance with Title 17’s requirements’’).See also post, at 7 (GINSBURG, J., dis-senting) (‘‘under’’ describes something‘‘governed or regulated by another’’).

One difficulty is that neither ‘‘under’’ norany other word in the phrase means‘‘where.’’ See, e.g., 18 Oxford English Dic-tionary, supra, at 947–952 (definition of‘‘under’’). It might mean ‘‘subject to,’’ seepost, at 1376, but as this Court has re-peatedly acknowledged, the word evades auniform, consistent meaning. See Kucanav. Holder, 558 U.S. 233, 245, 130 S.Ct. 827,175 L.Ed.2d 694 (2010) (‘‘ ‘under’ is chame-leon’’); Ardestani v. INS, 502 U.S. 129,135, 112 S.Ct. 515, 116 L.Ed.2d 496 (1991)(‘‘under’’ has ‘‘many dictionary definitions’’and ‘‘must draw its meaning from its con-text’’).

A far more serious difficulty arises outof the uncertainty and complexity sur-rounding the second step’s effort to readthe necessary geographical limitation intothe word ‘‘applicable’’ (or the equivalent).Where, precisely, is the Copyright Act

‘‘applicable’’? The Act does not instantlyprotect an American copyright holder fromunauthorized piracy taking place abroad.But that fact does not mean the Act isinapplicable to copies made abroad. As amatter of ordinary English, one can saythat a statute imposing, say, a tariff upon‘‘any rhododendron grown in Nepal’’ ap-plies to all Nepalese rhododendrons. And,similarly, one can say that the AmericanCopyright Act is applicable to all piratedcopies, including those printed overseas.Indeed, the Act itself makes clear that (inthe Solicitor General’s language) foreign-printed pirated copies are ‘‘subject to’’ theAct. § 602(a)(2) (2006 ed., Supp. V) (refer-ring to importation of copies ‘‘the makingof which either constituted an infringe-ment of copyright, or which would haveconstituted an infringement of copyright ifthis title had been applicable’’); Brief forUnited States 5. See also post, at 1376(suggesting that ‘‘made under’’ may beread as ‘‘subject to’’).

The appropriateness of this linguistic us-age is underscored by the fact that § 104of the Act itself says that works ‘‘subject toprotection under this title ’’ include unpub-lished works ‘‘without regard to the nation-ality or domicile of the author,’’ and works‘‘first published’’ in any one of the nearly180 nations that have signed a copyrighttreaty with the United States. §§ 104(a),(b) (2006 ed.) (emphasis added); § 101(2006 ed., Supp. V) (defining ‘‘treaty par-ty’’); U.S. Copyright Office, Circular No.38A, International Copyright Relations ofthe United States (2010). Thus, ordinaryEnglish permits us to say that the Act‘‘applies’’ to an Irish manuscript lying inits author’s Dublin desk drawer as well asto an original recording of a ballet per-formance first made in Japan and now ondisplay in a Kyoto art gallery. Cf. 4 M.Nimmer & D. Nimmer, Copyright § 17.02,pp. 17–18, 17–19 (2012) (hereinafter Nim-


mer on Copyright) (noting that the princi-ple that ‘‘copyright laws do not have anyextraterritorial operation’’ ‘‘requires somequalification’’).

The Ninth Circuit’s geographical inter-pretation produces still greater linguisticdifficulty. As we said, that Circuit inter-prets the ‘‘first sale’’ doctrine to cover both(1) copies manufactured in the UnitedStates and (2) copies manufactured abroadbut first sold in the United States with theAmerican copyright owner’s permission.Denbicare U.S.A., 84 F.3d, at 1149–1150.See also Brief for Respondent 16 (suggest-ing that the clause at least excludes ‘‘theforeign production of a copy for distribu-tion exclusively abroad’’); id., at 51 (theCourt need ‘‘not decide whether the copy-right owner would be able to restrict fur-ther distribution’’ in the case of ‘‘a down-stream domestic purchaser of authorizedimports’’); Brief for Petitioner in CostcoWholesale Corp. v. Omega, S.A., O.T.2010,No. 08–1423, p. 12 (excepting importedcopies ‘‘made by unrelated foreign copy-right holders’’ (emphasis deleted)).

We can understand why the Ninth Cir-cuit may have thought it necessary to addthe second part of its definition. As weshall later describe, see Part II–D, infra,without some such qualification a copy-right holder could prevent a buyer fromdomestically reselling or even giving awaycopies of a video game made in Japan, afilm made in Germany, or a dress (with adesign copyright) made in China, even ifthe copyright holder has granted permis-sion for the foreign manufacture, importa-tion, and an initial domestic sale of thecopy. A publisher such as Wiley would befree to print its books abroad, allow theirimportation and sale within the UnitedStates, but prohibit students from laterselling their used texts at a campus book-store. We see no way, however, to recon-cile this half-geographical/half-nongeo-

graphical interpretation with the languageof the phrase, ‘‘lawfully made under thistitle.’’ As a matter of English, it wouldseem that those five words either do covercopies lawfully made abroad or they donot.

In sum, we believe that geographicalinterpretations create more linguisticproblems than they resolve. And consid-erations of simplicity and coherence tip thepurely linguistic balance in Kirtsaeng’s,nongeographical, favor.

B

Both historical and contemporary statu-tory context indicate that Congress, whenwriting the present version of § 109(a), didnot have geography in mind. In respect tohistory, we compare § 109(a)’s presentlanguage with the language of its immedi-ate predecessor. That predecessor said:

‘‘[N]othing in this Act shall be deemedto forbid, prevent, or restrict the trans-fer of any copy of a copyrighted workthe possession of which has been lawful-ly obtained.’’ Copyright Act of 1909,§ 41, 35 Stat. 1084 (emphasis added).

See also Copyright Act of 1947, § 27, 61Stat. 660. The predecessor says nothingabout geography (and Wiley does not ar-gue that it does). So we ask whetherCongress, in changing its language implic-itly introduced a geographical limitationthat previously was lacking. See also PartII–C, infra (discussing 1909 codification ofcommon-law principle).

A comparison of language indicates thatit did not. The predecessor says that the‘‘first sale’’ doctrine protects ‘‘the transferof any copy the possession of which hasbeen lawfully obtained.’’ The present ver-sion says that ‘‘the owner of a particularcopy or phonorecord lawfully made underthis title is entitled to sell or otherwisedispose of the possession of that copy or


phonorecord.’’ What does this change inlanguage accomplish?

The language of the former version re-ferred to those who are not owners of acopy, but mere possessors who ‘‘lawfullyobtained’’ a copy. The present versioncovers only those who are owners of a‘‘lawfully made’’ copy. Whom does thechange leave out? Who might have lawful-ly obtained a copy of a copyrighted workbut not owned that copy? One answer isowners of movie theaters, who during the1970’s (and before) often leased films frommovie distributors or filmmakers. See S.Donahue, American Film Distribution 134,177 (1987) (describing producer-distributerand distributer-exhibitor agreements);Note, The Relationship Between MotionPicture Distribution and Exhibition: AnAnalysis of the Effects of Anti–Blind Bid-ding Legislation, 9 Comm/Ent. L.J. 131,135 (1986). Because the theater ownershad ‘‘lawfully obtained’’ their copies, theearlier version could be read as allowingthem to sell that copy, i.e., it might havegiven them ‘‘first sale’’ protection. Be-cause the theater owners were lessees, notowners, of their copies, the change in lan-guage makes clear that they (like baileesand other lessees) cannot take advantageof the ‘‘first sale’’ doctrine. (Those whofind legislative history useful will find con-firmation in, e.g., House Committee on theJudiciary, Copyright Law Revision, Sup-plementary Report of the Register ofCopyrights on the General Revision of theU.S. Copyright Law: 1965 Revision Bill,89th Cong., 1st Sess., pt. 6, p. 30 (Comm.Print 1965) (hereinafter Copyright LawRevision) (‘‘[W]here a person has rented aprint of a motion picture from the copy-right owner, he would have no right tolend, rent, sell, or otherwise dispose of theprint without first obtaining the copyrightowner’s permission’’). See also Platt &Munk Co. v. Republic Graphics, Inc., 315F.2d 847, 851 (C.A.2 1963) (Friendly, J.)

(pointing out predecessor statute’s leasingproblem)).

This objective perfectly well explains thenew language of the present version, in-cluding the five words here at issue. Sec-tion 109(a) now makes clear that a lesseeof a copy will not receive ‘‘first sale’’ pro-tection but one who owns a copy willreceive ‘‘first sale’’ protection, provided, ofcourse, that the copy was ‘‘lawfully made ’’and not pirated. The new language alsotakes into account that a copy may be‘‘lawfully made under this title’’ when thecopy, say of a phonorecord, comes into itsowner’s possession through use of a com-pulsory license, which ‘‘this title’’ providesfor elsewhere, namely, in § 115. Again,for those who find legislative history use-ful, the relevant legislative report makesthis clear. H.R.Rep. No. 94–1476, p. 79(1976), 1976 U.S.C.C.A.N. 5659, 5693 (‘‘Forexample, any resale of an illegally ‘pirated’phonorecord would be an infringement, butthe disposition of a phonorecord legallymade under the compulsory licensing pro-visions of section 115 would not’’).

Other provisions of the present statutealso support a nongeographical interpreta-tion. For one thing, the statute phasesout the ‘‘manufacturing clause,’’ a clausethat appeared in earlier statutes and hadlimited importation of many copies (ofcopyrighted works) printed outside theUnited States. § 601, 90 Stat. 2588 (‘‘Priorto July 1, 1982 TTT the importation into orpublic distribution in the United States ofcopies of a work consisting preponderantlyof nondramatic literary material TTT isprohibited unless the portions consisting ofsuch material have been manufactured inthe United States or Canada’’). The phas-ing out of this clause sought to equalizetreatment of copies manufactured inAmerica and copies manufactured abroad.See H.R.Rep. No. 94–1476, at 165–166.


The ‘‘equal treatment’’ principle, howev-er, is difficult to square with a geographi-cal interpretation of the ‘‘first sale’’ clausethat would grant the holder of an Ameri-can copyright (perhaps a foreign national,see supra, at 1359) permanent control overthe American distribution chain (sales, re-sales, gifts, and other distribution) in re-spect to copies printed abroad but not inrespect to copies printed in America. Andit is particularly difficult to believe thatCongress would have sought this unequaltreatment while saying nothing about itand while, in a related clause (the manu-facturing phase-out), seeking the oppositekind of policy goal. Cf. Golan v. Holder,565 U.S. ––––, ––––, 132 S.Ct. 873, 893, 181L.Ed.2d 835 (2012) (Congress has movedfrom a copyright regime that, prior to1891, entirely excluded foreign works fromU.S. copyright protection to a regime thatnow ‘‘ensure[s] that most works, whetherforeign or domestic, would be governed bythe same legal regime ’’ (emphasis added)).

[2] Finally, we normally presume thatthe words ‘‘lawfully made under this title’’carry the same meaning when they appearin different but related sections. Depart-ment of Revenue of Ore. v. ACF Indus-tries, Inc., 510 U.S. 332, 342, 114 S.Ct. 843,127 L.Ed.2d 165 (1994). But doing so hereproduces surprising consequences. Con-sider:

(1) Section 109(c) says that, despite thecopyright owner’s exclusive right ‘‘to dis-play’’ a copyrighted work (provided in§ 106(5)), the owner of a particular copy‘‘lawfully made under this title’’ maypublicly display it without further au-thorization. To interpret these wordsgeographically would mean that one whobuys a copyrighted work of art, a poster,or even a bumper sticker, in Canada, inEurope, in Asia, could not display it inAmerica without the copyright owner’sfurther authorization.

(2) Section 109(e) specifically providesthat the owner of a particular copy of acopyrighted video arcade game ‘‘lawfullymade under this title’’ may ‘‘publiclyperform or display that game in coin-operated equipment’’ without the au-thorization of the copyright owner. Tointerpret these words geographicallymeans that an arcade owner could not(‘‘without the authority of the copyrightowner’’) perform or display arcadegames (whether new or used) originallymade in Japan. Cf. Red Baron–Frank-lin Park, Inc. v. Taito Corp., 883 F.2d275 (C.A.4 1989).

(3) Section 110(1) says that a teacher,without the copyright owner’s authoriza-tion, is allowed to perform or display acopyrighted work (say, an audiovisualwork) ‘‘in the course of face-to-faceteaching activities’’—unless the teacherknowingly used ‘‘a copy that was notlawfully made under this title.’’ To in-terpret these words geographicallywould mean that the teacher could not(without further authorization) use acopy of a film during class if the copywas lawfully made in Canada, Mexico,Europe, Africa, or Asia.

(4) In its introductory sentence, § 106provides the Act’s basic exclusive rightsto an ‘‘owner of a copyright under thistitle.’’ The last three words cannot sup-port a geographic interpretation.

Wiley basically accepts the first threereadings, but argues that Congress intend-ed the restrictive consequences. And itargues that context simply requires thatthe words of the fourth example receive adifferent interpretation. Leaving thefourth example to the side, we shall ex-plain in Part II–D, infra, why we find itunlikely that Congress would have intend-ed these, and other related consequences.


C

[3] A relevant canon of statutory inter-pretation favors a nongeographical read-ing. ‘‘[W]hen a statute covers an issuepreviously governed by the common law,’’we must presume that ‘‘Congress intendedto retain the substance of the commonlaw.’’ Samantar v. Yousuf, 560 U.S. ––––,––––, n. 13, 130 S.Ct. 2278, 2289–2290, n.13, 176 L.Ed.2d 1047 (2010). See alsoIsbrandtsen Co. v. Johnson, 343 U.S. 779,783, 72 S.Ct. 1011, 96 L.Ed. 1294 (1952)(‘‘Statutes which invade the common lawTTT are to be read with a presumptionfavoring the retention of long-establishedand familiar principles, except when a stat-utory purpose to the contrary is evident’’).

The ‘‘first sale’’ doctrine is a common-law doctrine with an impeccable historicpedigree. In the early 17th century LordCoke explained the common law’s refusalto permit restraints on the alienation ofchattels. Referring to Littleton, whowrote in the 15th century, Gray, Two Con-tributions to Coke Studies, 72 U. Chi.L.Rev. 1127, 1135 (2005), Lord Cokewrote:

‘‘[If] a man be possessed of TTT a horse,or of any other chattell TTT and give orsell his whole interest TTT therein uponcondition that the Donee or Vendee shallnot alien[ate] the same, the [condition] isvoi[d], because his whole interest TTT isout of him, so as he hath no possibilit[y]of a Reverter, and it is against Tradeand Traffi[c], and bargaining and con-tracting betwee[n] man and man: and itis within the reason of our Author that itshould ouster him of all power given tohim.’’ 1 E. Coke, Institutes of the Lawsof England § 360, p. 223 (1628).

A law that permits a copyright holder tocontrol the resale or other disposition of achattel once sold is similarly ‘‘againstTrade and Traffi[c], and bargaining andcontracting.’’ Ibid.

With these last few words, Coke empha-sizes the importance of leaving buyers ofgoods free to compete with each otherwhen reselling or otherwise disposing ofthose goods. American law too has gener-ally thought that competition, includingfreedom to resell, can work to the advan-tage of the consumer. See, e.g., LeeginCreative Leather Products, Inc. v. PSKS,Inc., 551 U.S. 877, 886, 127 S.Ct. 2705, 168L.Ed.2d 623 (2007) (restraints with ‘‘mani-festly anticompetitive effects’’ are per seillegal; others are subject to the rule ofreason (internal quotation marks omitted));1 P. Areeda & H. Hovenkamp, AntitrustLaw ¶ 100, p. 4 (3d ed. 2006) (‘‘[T]heprincipal objective of antitrust policy is tomaximize consumer welfare by encourag-ing firms to behave competitively’’).

The ‘‘first sale’’ doctrine also freescourts from the administrative burden oftrying to enforce restrictions upon diffi-cult-to-trace, readily movable goods. Andit avoids the selective enforcement inher-ent in any such effort. Thus, it is notsurprising that for at least a century the‘‘first sale’’ doctrine has played an impor-tant role in American copyright law. SeeBobbs–Merrill Co. v. Straus, 210 U.S. 339,28 S.Ct. 722, 52 L.Ed. 1086 (1908); Copy-right Act of 1909, § 41, 35 Stat. 1084. Seealso Copyright Law Revision, Further Dis-cussions and Comments on PreliminaryDraft 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 lawthat, once you’ve sold a copy legally, youcan’t restrict its resale’’).

The common-law doctrine makes no geo-graphical distinctions; nor can we find anyin Bobbs–Merrill (where this Court firstapplied the ‘‘first sale’’ doctrine) or in§ 109(a)’s predecessor provision, whichCongress enacted a year later. See supra,


at 1360. Rather, as the Solicitor Generalacknowledges, ‘‘a straightforward applica-tion of Bobbs–Merrill ’’ would not precludethe ‘‘first sale’’ defense from applying toauthorized copies made overseas. Brieffor United States 27. And we can find nolanguage, context, purpose, or history thatwould rebut a ‘‘straightforward applica-tion’’ of that doctrine here.

[4] The dissent argues that anotherprinciple of statutory interpretation worksagainst our reading, and points out thatelsewhere in the statute Congress useddifferent words to express something likethe non-geographical reading we adopt.Post, at 1377 – 1378 (quoting § 602(a)(2)(prohibiting the importation of copies ‘‘themaking of which either constituted an in-fringement of copyright, or which wouldhave constituted an infringement of copy-right if this title had been applicable’’ (em-phasis deleted))). Hence, Congress, thedissent believes, must have meant§ 109(a)’s different language to meansomething different (such as the dissent’sown geographical interpretation of§ 109(a)). We are not aware, however, ofany canon of interpretation that forbidsinterpreting different words used in differ-ent parts of the same statute to meanroughly the same thing. Regardless, werethere such a canon, the dissent’s interpre-tation of § 109(a) would also violate it.That is because Congress elsewhere in the1976 Act included the words ‘‘manufac-tured in the United States or Canada,’’ 90Stat. 2588, which express just about thesame geographical thought that the dissentreads into § 109(a)’s very different lan-guage.

D

Associations of libraries, used-book deal-ers, technology companies, consumer-goods retailers, and museums point to var-ious ways in which a geographical inter-

pretation would fail to further basic consti-tutional copyright objectives, in particular‘‘promot[ing] the Progress of Science anduseful Arts.’’ U.S. Const., Art. I, § 8, cl. 8.

The American Library Association tellsus that library collections contain at least200 million books published abroad (pre-sumably, many were first published in oneof the nearly 180 copyright-treaty nationsand enjoy American copyright protectionunder 17 U.S.C. § 104, see supra, at 1359);that many others were first published inthe United States but printed abroad be-cause of lower costs; and that a geographi-cal interpretation will likely require thelibraries to obtain permission (or at leastcreate significant uncertainty) before cir-culating or otherwise distributing thesebooks. Brief for American Library Asso-ciation et al. as Amici Curiae 4, 15–20.Cf. id., at 16–20, 28 (discussing limitationsof potential defenses, including the fair useand archival exceptions, §§ 107–108). Seealso Library and Book Trade Almanac 511(D. Bogart ed., 55th ed.2010) (during 2000–2009 ‘‘a significant amount of book printingmoved to foreign nations’’).

How, the American Library Associationasks, are the libraries to obtain permissionto distribute these millions of books? Howcan they find, say, the copyright owner ofa foreign book, perhaps written decadesago? They may not know the copyrightholder’s present address. Brief for Ameri-can Library Association 15 (many bookslack indication of place of manufacture;‘‘no practical way to learn where [a] bookwas printed’’). And, even where addressescan be found, the costs of finding them,contacting owners, and negotiating may behigh indeed. Are the libraries to stopcirculating or distributing or displaying themillions of books in their collections thatwere printed abroad?

Used-book dealers tell us that, from thetime when Benjamin Franklin and Thomas


Jefferson built commercial and personallibraries of foreign books, American read-ers have bought used books published andprinted abroad. Brief for Powell’s BooksInc. et al. as Amici Curiae 7 (citing M.Stern, Antiquarian Bookselling in theUnited States (1985)). The dealers saythat they have ‘‘operat[ed] TTT for centu-ries’’ under the assumption that the ‘‘firstsale’’ doctrine applies. Brief for Powell’sBooks 7. But under a geographical inter-pretation a contemporary tourist whobuys, say, at Shakespeare and Co. (in Par-is), a dozen copies of a foreign book forAmerican friends might find that she hadviolated the copyright law. The used-bookdealers cannot easily predict what the for-eign copyright holder may think about areader’s effort to sell a used copy of anovel. And they believe that a geographi-cal interpretation will injure a large por-tion of the used-book business.

Technology companies tell us that ‘‘auto-mobiles, microwaves, calculators, mobilephones, tablets, and personal computers’’contain copyrightable software programsor packaging. Brief for Public Knowledgeet al. as Amici Curiae 10. See also Brieffor Association of Service and ComputerDealers International, Inc., et al. as AmiciCuriae 2. Many of these items are madeabroad with the American copyright hold-er’s permission and then sold and imported(with that permission) to the UnitedStates. Brief for Retail Litigation Center,Inc., et al. as Amici Curiae 4. A geograph-ical interpretation would prevent the re-sale of, say, a car, without the permissionof the holder of each copyright on eachpiece of copyrighted automobile software.Yet there is no reason to believe thatforeign auto manufacturers regularly ob-tain this kind of permission from theirsoftware component suppliers, and Wileydid not indicate to the contrary whenasked. See Tr. of Oral Arg. 29–30. With-

out that permission a foreign car ownercould not sell his or her used car.

Retailers tell us that over $2.3 trillionworth of foreign goods were imported in2011. Brief for Retail Litigation Center 8.American retailers buy many of thesegoods after a first sale abroad. Id., at 12.And, many of these items bear, carry, orcontain copyrighted ‘‘packaging, logos, la-bels, and product inserts and instructionsfor [the use of] everyday packaged goodsfrom floor cleaners and health and beautyproducts to breakfast cereals.’’ Id., at 10–11. The retailers add that American salesof more traditional copyrighted works,‘‘such as books, recorded music, motionpictures, and magazines’’ likely amount toover $220 billion. Id., at 9. See also id., at10 (electronic game industry is $16 billion).A geographical interpretation would sub-ject many, if not all, of them to the disrup-tive impact of the threat of infringementsuits. Id., at 12.

Art museum directors ask us to considertheir efforts to display foreign-producedworks by, say, Cy Twombly, Rene Mag-ritte, Henri Matisse, Pablo Picasso, andothers. See supra, at 1359 (describinghow § 104 often makes such works ‘‘sub-ject to’’ American copyright protection).A geographical interpretation, they say,would require the museums to obtain per-mission from the copyright owners beforethey could display the work, see supra, at1362—even if the copyright owner has al-ready sold or donated the work to a for-eign museum. Brief for Association of ArtMuseum Directors et al. as Amici Curiae10–11. What are the museums to do, theyask, if the artist retained the copyright, ifthe artist cannot be found, or if a group ofheirs is arguing about who owns whichcopyright? Id., at 14.

These examples, and others previouslymentioned, help explain why Lord Cokeconsidered the ‘‘first sale’’ doctrine neces-


sary to protect ‘‘Trade and Traffi[c], andbargaining and contracting,’’ and they helpexplain why American copyright law haslong applied that doctrine. Cf. supra, at1363 – 1364.

Neither Wiley nor any of its many amicideny that a geographical interpretationcould bring about these ‘‘horribles’’—atleast in principle. Rather, Wiley essential-ly says that the list is artificially invented.Brief for Respondent 51–52. It points outthat a federal court first adopted a geo-graphical interpretation more than 30years ago. CBS, Inc. v. Scorpio MusicDistributors, Inc., 569 F.Supp. 47, 49(E.D.Pa.1983), summarily aff’d, 738 F.2d424 (C.A.3 1984) (table). Yet, it adds,these problems have not occurred. Whynot? Because, says Wiley, the problemsand threats are purely theoretical; theyare unlikely to reflect reality. See alsopost, at 1389 – 1390.

We are less sanguine. For one thing,the law has not been settled for long inWiley’s favor. The Second Circuit, in itsdecision below, is the first Court of Ap-peals to adopt a purely geographical inter-pretation. The Third Circuit has favoreda nongeographical interpretation. Sebas-tian Int’l, 847 F.2d 1093. The Ninth Cir-cuit has favored a modified geographicalinterpretation with a nongeographical (buttextually unsustainable) corollary designedto diminish the problem. DenbicareU.S.A., 84 F.3d 1143. See supra, at 1359 –1360. And other courts have hesitated toadopt, and have cast doubt upon, the valid-ity of the geographical interpretation.Pearson Educ., Inc. v. Liu, 656 F.Supp.2d407 (S.D.N.Y.2009); Red–Baron FranklinPark, Inc. v. Taito Corp., No. 88–0156–A,1988 WL 167344, *3 (E.D.Va.1988), rev’don other grounds, 883 F.2d 275 (C.A.41989).

For another thing, reliance upon the‘‘first sale’’ doctrine is deeply embedded in

the practices of those, such as booksellers,libraries, museums, and retailers, whohave long relied upon its protection. Mu-seums, for example, are not in the habit ofasking their foreign counterparts to checkwith the heirs of copyright owners beforesending, e.g., a Picasso on tour. Brief forAssociation of Art Museum Directors 11–12. That inertia means a dramatic changeis likely necessary before these institu-tions, instructed by their counsel, wouldbegin to engage in the complex permis-sion-verifying process that a geographicalinterpretation would demand. And thisCourt’s adoption of the geographical inter-pretation could provide that dramaticchange. These intolerable consequences(along with the absurd result that thecopyright owner can exercise downstreamcontrol even when it authorized the importor first sale) have understandably led theNinth Circuit, the Solicitor General asamicus, and the dissent to adopt textualreadings of the statute that attempt tomitigate these harms. Brief for UnitedStates 27–28; post, at 1386 – 1388. Butthose readings are not defensible, for theyrequire too many unprecedented jumpsover linguistic and other hurdles that inour view are insurmountable. See, e.g.,post, at 1387 (acknowledging that its read-ing of § 106(3) ‘‘significantly curtails theindependent effect of § 109(a)’’).

Finally, the fact that harm has provedlimited so far may simply reflect the reluc-tance of copyright holders so far to assertgeographically based resale rights. Theymay decide differently if the law is clari-fied in their favor. Regardless, a copy-right law that can work in practice only ifunenforced 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 dis-respect for copyright law itself.


Thus, we believe that the practical prob-lems that petitioner and his amici havedescribed are too serious, too extensive,and too likely to come about for us todismiss them as insignificant—particularlyin light of the ever-growing importance offoreign trade to America. See The WorldBank, Imports of goods and services (% ofGDP) (imports in 2011 18% of U.S. grossdomestic product compared to 11% in1980), online at http://data.worldbank.org/indicator/NE.IMP.GNFS.ZS? (as visitedMar. 15, 2013, and available in Clerk ofCourt’s case file). The upshot is thatcopyright-related consequences along withlanguage, context, and interpretive canonsargue strongly against a geographical in-terpretation of § 109(a).

III

Wiley and the dissent make several ad-ditional important arguments in favor ofthe geographical interpretation. First,they say that our Quality King decisionstrongly supports its geographical inter-pretation. In that case we asked whetherthe Act’s ‘‘importation provision,’’ now§ 602(a)(1) (then § 602(a)), barred impor-tation (without permission) of a copyright-ed item (labels affixed to hair care prod-ucts) where an American copyright ownerauthorized the first sale and export of haircare products with copyrighted labelsmade in the United States, and where abuyer sought to import them back into theUnited States without the copyright own-er’s permission. 523 U.S., at 138–139, 118S.Ct. 1125.

We held that the importation provisiondid not prohibit sending the products backinto the United States (without the copy-right owner’s permission). That sectionsays:

‘‘Importation into the United States,without the authority of the owner ofcopyright under this title, of copies or

phonorecords of a work that have beenacquired outside the United States is aninfringement of the exclusive right todistribute copies or phono-records undersection 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 makesimportation an infringement of the ‘‘exclu-sive right to distribute TTT under 106.’’We noted that § 109(a)’s ‘‘first sale’’ doc-trine limits the scope of the § 106 exclu-sive distribution right. We took as giventhe fact that the products at issue had atleast once been sold. And we held thatconsequently, importation of the copyright-ed labels does not violate § 602(a)(1). 523U.S., at 145, 118 S.Ct. 1125.

In reaching this conclusion we endorsedBobbs–Merrill and its statement that thecopyright laws were not ‘‘intended to cre-ate a right which would permit the holderof the copyright to fasten, by notice in abook TTT a restriction upon the subsequentalienation of the subject-matter of copy-right after the owner had parted with thetitle to one who had acquired full dominionover it.’’ 210 U.S., at 349–350, 28 S.Ct.722.

We also explained why we rejected theclaim that our interpretation would make§ 602(a)(1) pointless. Those advancingthat claim had pointed out that the 1976Copyright Act amendments retained a pri-or anti-piracy provision, prohibiting theimportation of pirated copies. QualityKing, supra, at 146, 118 S.Ct. 1125. Thus,they said, § 602(a)(1) must prohibit theimportation of lawfully made copies, for toallow the importation of those lawfullymade copies after a first sale, as QualityKing’ s holding would do, would leave§ 602(a)(1) without much to prohibit. Itwould become superfluous, without anyreal work to do.


We do not believe that this argument isa strong one. Under Quality King ’s in-terpretation, § 602(a)(1) would still forbidimporting (without permission, and subjectto the exceptions in § 602(a)(3)) copieslawfully made abroad, for example, where(1) a foreign publisher operating as thelicensee of an American publisher printscopies of a book overseas but, prior to anyauthorized sale, seeks to send them to theUnited States; (2) a foreign printer orother manufacturer (if not the ‘‘owner’’ forpurposes of § 109(a), e.g., before an au-thorized sale) sought to send copyrightedgoods to the United States; (3) ‘‘a bookpublisher transports copies to a wholesal-er’’ and the wholesaler (not yet the owner)sends them to the United States, seeCopyright Law Revision, pt. 4, at 211 (giv-ing this example); or (4) a foreign filmdistributor, having leased films for distri-bution, or any other licensee, consignee, orbailee sought to send them to the UnitedStates. See, e.g., 2 Nimmer on Copyright§ 8.12[B][1][a], at 8–159 (‘‘Section 109(a)provides that the distribution right may beexercised solely with respect to the initialdisposition of copies of a work, not toprevent or restrict the resale or otherfurther transfer of possession of such cop-ies’’). These examples show that§ 602(a)(1) retains significance. We con-cede it has less significance than the dis-sent believes appropriate, but the dissentalso adopts a construction of § 106(3) that‘‘significantly curtails’’ § 109(a)’s effect,post, at 1387, and so limits the scope ofthat provision to a similar, or even greater,degree.

In Quality King we rejected the ‘‘super-fluous’’ argument for similar reasons.But, when rejecting it, we said that, wherean author gives exclusive American distri-bution rights to an American publisher andexclusive British distribution rights to aBritish publisher, ‘‘presumably only those[copies] made by the publisher of the Unit-

ed States edition would be ‘lawfully madeunder this title’ within the meaning of§ 109(a).’’ 523 U.S., at 148, 118 S.Ct. 1125(emphasis added). Wiley now argues thatthis phrase in the Quality King opinionmeans that books published abroad (underlicense) must fall outside the words ‘‘law-fully made under this title’’ and that wehave consequently already given thosewords the geographical interpretation thatit favors.

We cannot, however, give the QualityKing statement the legal weight for whichWiley argues. The language ‘‘lawfullymade under this title’’ was not at issue inQuality King ; the point before us nowwas not then fully argued; we did notcanvas the considerations we have here setforth; we there said nothing to suggestthat the example assumes a ‘‘first sale’’;and we there hedged our statement withthe word ‘‘presumably.’’ Most important-ly, the statement is pure dictum. It isdictum contained in a rebuttal to a coun-terargument. And it is unnecessary dic-tum even in that respect. Is the Courthaving once written dicta calling a tomatoa vegetable bound to deny that it is a fruitforever after?

[5] To the contrary, we have writtenthat we are not necessarily bound by dictashould more complete argument demon-strate that the dicta is not correct. Cen-tral Va. Community College v. Katz, 546U.S. 356, 363, 126 S.Ct. 990, 163 L.Ed.2d945 (2006) (‘‘[W]e are not bound to followour dicta in a prior case in which the pointnow at issue was not fully debated’’);Humphrey’s Executor v. United States,295 U.S. 602, 627–628, 55 S.Ct. 869, 79L.Ed. 1611 (1935) (rejecting, under staredecisis, dicta, ‘‘which may be followed ifsufficiently persuasive but which are notcontrolling’’). And, given the bit part thatour Quality King statement played in our


Quality King decision, we believe the viewof stare decisis set forth in these opinionsapplies to the matter now before us.

Second, Wiley and the dissent argue (tothose who consider legislative history) thatthe Act’s legislative history supports theirinterpretation. But the historical eventsto which it points took place more than adecade before the enactment of the Actand, at best, are inconclusive.

During the 1960’s, representatives ofbook, record, and film industries, meetingwith the Register of Copyrights to discusscopyright revision, complained about thedifficulty of dividing international markets.Copyright Law Revision Discussion andComments on Report of the Register ofCopyrights on the General Revision of theU.S. Copyright Law, 88th Cong., 1st Sess.,pt. 2, p. 212 (Comm. Print 1963) (Englisheditions of ‘‘particular’’ books ‘‘fin[d]’’ their‘‘way into this country’’); id., at 213 (works‘‘publi[shed] in a country where there is nocopyright protection of any sort’’ are putinto ‘‘the free stream of commerce’’ and‘‘shipped to the United States’’); ibid.(similar concern in respect to films).

The then-Register of Copyrights, Abra-ham Kaminstein, found these examples‘‘very troubl[ing].’’ Ibid. And the Copy-right Office released a draft provision thatit said ‘‘deals with the matter of the impor-tation for distribution in the United Statesof foreign copies that were made underproper authority but that, if sold in theUnited States, would be sold in contraven-tion of the rights of the copyright ownerwho holds the exclusive right to sell copiesin the United States.’’ Id., pt. 4, at 203.That draft version, without reference to§ 106, simply forbids unauthorized im-ports. It said:

‘‘Importation into the United States ofcopies or records of a work for the pur-pose of distribution to the public shall, ifsuch articles are imported without the

authority of the owner of the exclusiveright to distribute copies or records un-der this title, constitute an infringementof copyright actionable under section 35[17 U.S.C. § 501].’’ Id., PreliminaryDraft for Revised U.S. Copyright Lawand Discussions and Comments, 88thCong., 2d Sess., pt. 3, pp. 32–33(Comm. Print 1964).

In discussing the draft, some of thosepresent expressed concern about its effecton the ‘‘first sale’’ doctrine. For example,Irwin Karp, representing the AuthorsLeague of America asked, ‘‘If a Germanjobber lawfully buys copies from a Germanpublisher, are we not running into theproblem of restricting his transfer of hislawfully obtained copies?’’ Id., pt. 4, at211. The Copyright Office representativereplied, ‘‘This could vary from one situa-tion to another, I guess. I should guess,for example, that if a book publisher trans-ports [i.e., does not sell] copies to a whole-saler [i.e., a nonowner ], this is not yet thekind of transaction that exhausts the rightto control disposition.’’ Ibid. (emphasisadded).

The Office later withdrew the draft, re-placing it with a draft, which, by explicitlyreferring to § 106, was similar to the pro-vision that became law, now § 602(a)(1).The Office noted in a report that, underthe new draft, importation of a copy (with-out permission) ‘‘would violate the exclu-sive rights of the U.S. copyright owner TTT

where the copyright owner had authorizedthe making of copies in a foreign countryfor distribution only in that country.’’ Id.,pt. 6, at 150.

Still, that part of the report says nothingabout the ‘‘first sale’’ doctrine, about§ 109(a), or about the five words, ‘‘lawfullymade under this title.’’ And neither thereport nor its accompanying 1960’s draftanswers the question before us here. Cf.Quality King, 523 U.S., at 145, 118 S.Ct.


1125 (without those five words, the importclause, via its reference to § 106, importsthe ‘‘first sale’’ doctrine).

But to ascertain the best reading of§ 109(a), rather than dissecting the re-marks of industry representatives concern-ing § 602 at congressional meetings held10 years before the statute was enacted,see post, at 1380 – 1381, we would givegreater weight to the congressional reportaccompanying § 109(a), written a decadelater when Congress passed the new law.That report says:

‘‘Section 109(a) restates and confirmsthe principle that, where the copyrightowner has transferred ownership of aparticular copy or phonorecord of awork, the person to whom the copy orphonorecord is transferred is entitled todispose of it by sale, rental, or any othermeans. Under this principle, which hasbeen established by the court decisionsand TTT the present law, the copyrightowner’s exclusive right of public distri-bution would have no effect upon anyonewho owns ‘a particular copy or phono-record lawfully made under this title’and who wishes to transfer it to some-one else or to destroy it.

* * * * * *

‘‘To come within the scope of section109(a), a copy or phonorecord must havebeen ‘lawfully made under this title,’though not necessarily with the copy-right owner’s authorization. For exam-ple, any resale of an illegally ‘pirated’phonorecord would be an infringementbut the disposition of a phonorecord le-gally made under the compulsory licens-ing provisions of section 115 would not.’’H.R.Rep. No. 94–1476, at 79 (emphasisadded).

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

This history reiterates the importance ofthe ‘‘first sale’’ doctrine. See, e.g., Copy-right Law Revision, 1964 Revision Billwith Discussions and Comments, 89thCong., 1st Sess., pt. 5, p. 66 (Comm. Print1965) (‘‘[F]ull ownership of a lawfully-madecopy authorizes its owner to dispose of itfreely’’). It explains, as we have ex-plained, the nongeographical purposes ofthe words ‘‘lawfully made under this title.’’Part II–B, supra. And it says nothingabout geography. Nor, importantly, did§ 109(a)’s predecessor provision. See su-pra, at 1360. This means that, contrary tothe dissent’s suggestion, any lack of legis-lative history pertaining to the ‘‘first sale’’doctrine only tends to bolster our positionthat Congress’ 1976 revision did not intendto create a drastic geographical change inits revision to that provision. See post, at1383, n. 13. We consequently believe thatthe legislative history, on balance, supportsthe nongeographical interpretation.

Third, Wiley and the dissent claim thata nongeographical interpretation will makeit difficult, perhaps impossible, for publish-ers (and other copyright holders) to divideforeign and domestic markets. We con-cede that is so. A publisher may find itmore difficult to charge different prices forthe same book in different geographicmarkets. But we do not see how thesefacts help Wiley, for we can find no basicprinciple of copyright law that suggeststhat publishers are especially entitled tosuch rights.

The Constitution describes the nature ofAmerican copyright law by providing Con-gress with the power to ‘‘secur[e]’’ to ‘‘[a]u-thors’’ ‘‘for limited [t]imes’’ the ‘‘exclusive[r]ight to their TTT [w]ritings.’’ Art. I,§ 8, cl. 8. The Founders, too, discussedthe need to grant an author a limited rightto exclude competition. Compare Letterfrom 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 Let-ter from James Madison to Thomas Jeffer-son (Oct. 17, 1788), in 14 id., at 16, 21 (J.Boyd ed. 1958) (arguing for a limited mo-nopoly to secure production). But theConstitution’s language nowhere suggeststhat its limited exclusive right should in-clude a right to divide markets or a con-comitant right to charge different purchas-ers different prices for the same book, sayto increase or to maximize gain. Neither,to our knowledge, did any Founder makeany such suggestion. We have found noprecedent suggesting a legal preferencefor interpretations of copyright statutesthat would provide for market divisions.Cf. Copyright Law Revision, pt. 2, at 194(statement of Barbara Ringer, CopyrightOffice) (division of territorial markets was‘‘primarily a matter of private contract’’).

To the contrary, Congress enacted acopyright law that (through the ‘‘first sale’’doctrine) limits copyright holders’ abilityto divide domestic markets. And that lim-itation is consistent with antitrust lawsthat ordinarily forbid market divisions.Cf. Palmer v. BRG of Ga., Inc., 498 U.S.46, 49–50, 111 S.Ct. 401, 112 L.Ed.2d 349(1990) (per curiam) (‘‘[A]greements be-tween competitors to allocate territories tominimize competition are illegal’’).Whether copyright owners should, orshould not, have more than ordinary com-mercial power to divide international mar-kets is a matter for Congress to decide.We do no more here than try to determinewhat decision Congress has taken.

Fourth, the dissent and Wiley contendthat our decision launches United Statescopyright law into an unprecedented re-gime of ‘‘international exhaustion.’’ Post,at 1382 – 1385; Brief for Respondent 45–46. But they point to nothing indicative ofcongressional intent in 1976. The dissentalso claims that it is clear that the United

States now opposes adopting such a re-gime, but the Solicitor General as amicushas taken no such position in this case. Infact, when pressed at oral argument, theSolicitor General stated that the conse-quences of Wiley’s reading of the 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 relianceon the Solicitor General’s position in Qual-ity King is undermined by his agreementin that case with our reading of § 109(a).Brief for United States as Amicus Curiaein Quality King, O.T.1996, No. 1470, p. 30(‘‘When TTT Congress wishes to make thelocation of manufacture relevant to Copy-right Act protection, it does so expressly’’);ibid. (calling it ‘‘distinctly unlikely’’ thatCongress would have provided an incentivefor overseas manufacturing).

Moreover, the exhaustion regime thedissent apparently favors would providethat ‘‘the sale in one country of a good’’does not ‘‘exhaus[t] the intellectual-proper-ty owner’s right to control the distributionof that good elsewhere.’’ Post, at 1383.But our holding in Quality King that§ 109(a) is a defense in U.S. courts evenwhen ‘‘the first sale occurred abroad,’’ 523U.S., at 145, n. 14, 118 S.Ct. 1125, hasalready significantly eroded such a princi-ple.

IV

For these reasons we conclude that theconsiderations supporting Kirtsaeng’s non-geographical interpretation of the words‘‘lawfully made under this title’’ are themore persuasive. The judgment of theCourt of Appeals is reversed, and the caseis remanded for further proceedings con-sistent with this opinion.

It is so ordered.


Justice KAGAN, with whom JusticeALITO joins, concurring.

I concur fully in the Court’s opinion.Neither the text nor the history of 17U.S.C. § 109(a) supports removing first-sale protection from every copy of a pro-tected work manufactured abroad. Seeante, at 1358 – 1362, 1368 – 1370. I recog-nize, however, that the combination of to-day’s decision and Quality King Distribu-tors, Inc. v. L’anza Research Int’l, Inc.,523 U.S. 135, 118 S.Ct. 1125, 140 L.Ed.2d254 (1998), constricts the scope of§ 602(a)(1)’s ban on unauthorized importa-tion. I write to suggest that any problemsassociated with that limitation come notfrom our reading of § 109(a) here, butfrom Quality King ’s holding that § 109(a)limits § 602(a)(1).

As the Court explains, the first-sale doc-trine has played an integral part in Ameri-can copyright law for over a century. Seeante, at 1363 – 1364; Bobbs–Merrill Co. v.Straus, 210 U.S. 339, 28 S.Ct. 722, 52L.Ed. 1086 (1908). No codification of thedoctrine prior to 1976 even arguably limit-ed its application to copies made in theUnited States. See ante, at 1360. Andnothing in the text or history of § 109(a)—the Copyright Act of 1976’s first-sale pro-vision—suggests that Congress meant toenact the new, geographical restrictionJohn Wiley proposes, which at once woulddeprive American consumers of importantrights and encourage copyright holders tomanufacture abroad. See ante, at 1358 –1362, 1368 – 1370.

That said, John Wiley is right that theCourt’s decision, when combined withQuality King, substantially narrows§ 602(a)(1)’s ban on unauthorized importa-tion. Quality King held that the importa-tion ban does not reach any copies receiv-ing first-sale protection under § 109(a).See 523 U.S., at 151–152, 118 S.Ct. 1125.So notwithstanding § 602(a)(1), an ‘‘ownerof a particular copy TTT lawfully madeunder this title’’ can import that copy with-out the copyright owner’s permission.§ 109(a). In now holding that copies ‘‘law-fully made under this title’’ include copiesmanufactured abroad, we unavoidably di-minish § 602(a)(1)’s scope—indeed, limit itto a fairly esoteric set of applications. Seeante, at 1367 – 1368.

But if Congress views the shrinking of§ 602(a)(1) as a problem, it should recog-nize Quality King—not our decision to-day—as the culprit. Here, after all, wemerely construe § 109(a); Quality King isthe decision holding that § 109(a) limits§ 602(a)(1). Had we come out the oppo-site way in that case, § 602(a)(1) wouldallow a copyright owner to restrict theimportation of copies irrespective of thefirst-sale doctrine.1 That result would en-able the copyright owner to divide interna-tional markets in the way John Wileyclaims Congress intended when enacting§ 602(a)(1). But it would do so withoutimposing downstream liability on thosewho purchase and resell in the UnitedStates copies that happen to have beenmanufactured abroad. In other words,

1. Although Quality King concluded that thestatute’s text foreclosed that outcome, see 523U.S., at 151–152, 118 S.Ct. 1125, the SolicitorGeneral offered a cogent argument to thecontrary. He reasoned that § 109(a) does notlimit § 602(a)(1) because the former author-izes owners only to ‘‘sell’’ or ‘‘dispose’’ ofcopies—not to import them: The Act’s first-sale provision and its importation ban thusregulate separate, non-overlapping spheres of

conduct. See Brief for United States as Ami-cus Curiae in Quality King, O.T.1996, No. 96–1470, pp. 5, 8–10. That reading remains theGovernment’s preferred way of construing thestatute. See Tr. of Oral Arg. 44 (‘‘[W]e thinkthat we still would adhere to our view thatsection 109(a) should not be read as a limita-tion on section 602(a)(1)’’); see also ante, at1371; post, at 1384, n. 15 (GINSBURG, J.,dissenting).


that outcome would target unauthorizedimporters alone, and not the ‘‘libraries,used-book dealers, technology companies,consumer-goods retailers, and museums’’with whom the Court today is rightly con-cerned. Ante, at 1364. Assuming Con-gress adopted § 602(a)(1) to permit mar-ket segmentation, I suspect that is howCongress thought the provision wouldwork—not by removing first-sale protec-tion from every copy manufactured abroad(as John Wiley urges us to do here), butby enabling the copyright holder to controlimports even when the first-sale doctrineapplies (as Quality King now prevents).2

At bottom, John Wiley (together withthe dissent) asks us to misconstrue§ 109(a) in order to restore § 602(a)(1) toits purportedly rightful function of en-abling copyright holders to segment inter-national markets. I think John Wiley mayhave a point about what § 602(a)(1) wasdesigned to do; that gives me pause aboutQuality King ’s holding that the first-saledoctrine limits the importation ban’s scope.But the Court today correctly declines theinvitation to save § 602(a)(1) from QualityKing by destroying the first-sale protec-tion that § 109(a) gives to every owner ofa copy manufactured abroad. That wouldswap one (possible) mistake for a muchworse one, and make our reading of thestatute only less reflective of Congression-al intent. If Congress thinks copyrightowners need greater power to restrict im-

portation and thus divide markets, a readysolution is at hand—not the one John Wi-ley offers in this case, but the one theCourt rejected in Quality King.

Justice GINSBURG, with whom JusticeKENNEDY joins, and with whom JusticeSCALIA joins except as to Parts III andV–B–1, dissenting.

‘‘In the interpretation of statutes, thefunction of the courts is easily stated. Itis to construe the language so as to giveeffect to the intent of Congress.’’ UnitedStates v. American Trucking Assns., Inc.,310 U.S. 534, 542, 60 S.Ct. 1059, 84 L.Ed.1345 (1940). Instead of adhering to theLegislature’s design, the Court todayadopts an interpretation of the CopyrightAct at odds with Congress’ aim to protectcopyright owners against the unauthorizedimportation of low-priced, foreign-madecopies of their copyrighted works. TheCourt’s bold departure from Congress’ de-sign is all the more stunning, for it placesthe United States at the vanguard of themovement for ‘‘international exhaustion’’ ofcopyrights—a movement the United Stateshas steadfastly resisted on the world stage.

To justify a holding that shrinks to in-significance copyright protection againstthe unauthorized importation of foreign-made copies, the Court identifies several‘‘practical problems.’’ Ante, at 1367. TheCourt’s parade of horribles, however, islargely imaginary. Congress’ objective in

2. Indeed, allowing the copyright owner to re-strict imports irrespective of the first-sale doc-trine—i.e., reversing Quality King—wouldyield a far more sensible scheme of marketsegmentation than would adopting John Wi-ley’s argument here. That is because only theformer approach turns on the intended marketfor copies; the latter rests instead on theirplace of manufacture. To see the difference,imagine that John Wiley prints all its text-books in New York, but wants to distributecertain versions only in Thailand. WithoutQuality King, John Wiley could do so—i.e.,

produce books in New York, ship them toThailand, and prevent anyone from importingthem back into the United States. But withQuality King, that course is not open to JohnWiley even under its reading of § 109(a): Toprevent someone like Kirtsaeng from re-im-porting the books—and so to segment theThai market—John Wiley would have to moveits printing facilities abroad. I can see noreason why Congress would have conditioneda copyright owner’s power to divide marketson outsourcing its manufacturing to a foreigncountry.


enacting 17 U.S.C. § 602(a)(1)’s importa-tion prohibition can be honored withoutgenerating the absurd consequences hy-pothesized in the Court’s opinion. I dis-sent from the Court’s embrace of ‘‘interna-tional exhaustion,’’ and would affirm thesound judgment of the Court of Appeals.

I

Because economic conditions and de-mand for particular goods vary across theglobe, copyright owners have a financialincentive to charge different prices forcopies of their works in different geo-graphic regions. Their ability to engage insuch price discrimination, however, is un-dermined if arbitrageurs are permitted toimport copies from low-price regions andsell them in high-price regions. The ques-tion in this case is whether the unautho-rized importation of foreign-made copiesconstitutes copyright infringement underU.S. law.

To answer this question, one must exam-ine three provisions of Title 17 of theU.S.Code: §§ 106(3), 109(a), and 602(a)(1).Section 106 sets forth the ‘‘exclusiverights’’ of a copyright owner, including theright ‘‘to distribute copies or phonorecordsof the copyrighted work to the public bysale or other transfer of ownership, or byrental, lease, or lending.’’ § 106(3). Thisdistribution right is limited by § 109(a),which provides: ‘‘Notwithstanding the pro-visions of section 106(3), the owner of aparticular copy or phonorecord lawfullymade under this title TTT is entitled, with-out the authority of the copyright owner,to sell or otherwise dispose of the posses-sion of that copy or phonorecord.’’ Section109(a) codifies the ‘‘first sale doctrine,’’ adoctrine articulated in Bobbs–Merrill Co.

v. Straus, 210 U.S. 339, 349–351, 28 S.Ct.722, 52 L.Ed. 1086 (1908), which held thata copyright owner could not control theprice at which retailers sold lawfully pur-chased copies of its work. The first saledoctrine recognizes that a copyright ownershould not be permitted to exercise per-petual control over the distribution of cop-ies of a copyrighted work. At somepoint—ordinarily the time of the first com-mercial sale—the copyright owner’s exclu-sive right under § 106(3) to control thedistribution of a particular copy is exhaust-ed, and from that point forward, the copycan be resold or otherwise redistributedwithout the copyright owner’s authoriza-tion.

Section 602(a)(1) (2006 ed., Supp. V) 1—last, but most critical, of the three copy-right provisions bearing on this case—is animportation ban. It reads:

‘‘Importation into the United States,without the authority of the owner ofcopyright under this title, of copies orphonorecords of a work that have beenacquired outside the United States is aninfringement of the exclusive right todistribute copies or phonorecords undersection 106, actionable under section501.’’

In Quality King Distributors, Inc. v.L’anza Research Int’l, Inc., 523 U.S. 135,143–154, 118 S.Ct. 1125, 140 L.Ed.2d 254(1998), the Court held that a copyrightowner’s right to control importation under§ 602(a)(1) is a component of the distribu-tion right set forth in § 106(3) and istherefore subject to § 109(a)’s codificationof the first sale doctrine. Quality Kingthus held that the importation of copiesmade in the United States but sold abroaddid not rank as copyright infringement

1. In 2008, Congress renumbered what waspreviously § 602(a) as § 602(a)(1). See Prio-ritizing Resources and Organization for Intel-lectual Property Act of 2008 (PROIPA),

§ 105(b)(2), 122 Stat. 4259. Like the Court, Irefer to the provision by its current number-ing.


under § 602(a)(1). Id., at 143–154, 118S.Ct. 1125. See also id., at 154, 118 S.Ct.1125 (GINSBURG, J., concurring) (Quali-ty King ‘‘involve[d] a ‘round trip’ journey,travel of the copies in question from theUnited States to places abroad, then backagain’’).2 Important to the Court’s hold-ing, the copies at issue in Quality Kinghad been ‘‘ ‘lawfully made under [Title17]’ ’’—a prerequisite for application of§ 109(a). Id., at 143, n. 9, 118 S.Ct. 1125(quoting § 109(a)). Section 602(a)(1), theCourt noted, would apply to ‘‘copies thatwere ‘lawfully made’ not under the UnitedStates Copyright Act, but instead, underthe law of some other country.’’ Id., at147, 118 S.Ct. 1125. Drawing on an exam-ple discussed during a 1964 public meetingon proposed revisions to the U.S. copy-right laws,3 the Court stated:

‘‘If the author of [a] work gave theexclusive United States distributionrights—enforceable under the Act—tothe publisher of the United States edi-tion and the exclusive British distribu-tion rights to the publisher of the Britishedition, TTT presumably only those [cop-ies] made by the publisher of the UnitedStates edition would be ‘lawfully madeunder this title’ within the meaning of§ 109(a). The first sale doctrine would

not provide the publisher of the Britishedition who decided to sell in the Ameri-can market with a defense to an actionunder § 602(a) (or, for that matter, to anaction under § 106(3), if there was adistribution of the copies).’’ Id., at 148,118 S.Ct. 1125.

As the District Court and the Court ofAppeals concluded, see 654 F.3d 210, 221–222 (C.A.2 2011); App. to Pet. for Cert.70a–73a, application of the Quality Kinganalysis to the facts of this case wouldpreclude any invocation of § 109(a). Peti-tioner Supap Kirtsaeng imported and thensold at a profit over 600 copies of copy-righted textbooks printed outside the Unit-ed States by the Asian subsidiary of re-spondent John Wiley & Sons, Inc. (Wiley).App. 29–34. See also ante, at 1355 – 1357(opinion of the Court). In the words theCourt used in Quality King, these copies‘‘were ‘lawfully made’ not under the UnitedStates Copyright Act, but instead, underthe law of some other country.’’ 523 U.S.,at 147, 118 S.Ct. 1125. Section 109(a)therefore does not apply, and Kirtsaeng’sunauthorized importation constitutes copy-right infringement under § 602(a)(1).

The Court does not deny that under thelanguage I have quoted from Quality

2. Although Justice KAGAN’s concurrence sug-gests that Quality King erred in ‘‘holding that§ 109(a) limits § 602(a)(1),’’ ante, at 1372,that recent, unanimous holding must be takenas a given. See John R. Sand & Gravel Co. v.United States, 552 U.S. 130, 139, 128 S.Ct.750, 169 L.Ed.2d 591 (2008) (‘‘[S]tare decisisin respect to statutory interpretation has ‘spe-cial force,’ for ‘Congress remains free to alterwhat we have done.’ ’’ (quoting Patterson v.McLean Credit Union, 491 U.S. 164, 172–173,109 S.Ct. 2363, 105 L.Ed.2d 132 (1989))).The Court’s objective in this case should be toavoid unduly ‘‘constrict[ing] the scope of§ 602(a)(1)’s ban on unauthorized importa-tion,’’ ante, at 1372 (opinion of KAGAN, J.),while at the same time remaining faithful toQuality King ’s holding and to the text and

history of other Copyright Act provisions.This aim is not difficult to achieve. See PartsII–V, infra. Justice Kagan and I appear toagree to this extent: Congress meant the banon unauthorized importation to have realforce. See ante, at 1373 (acknowledging that‘‘Wiley may have a point about what§ 602(a)(1) was designed to do’’).

3. See Quality King Distributors, Inc. v. L’anzaResearch Int’l, Inc., 523 U.S. 135, 148, n. 20,118 S.Ct. 1125, 140 L.Ed.2d 254 (1998) (quot-ing Copyright Law Revision Part 4: FurtherDiscussions and Comments on PreliminaryDraft for Revised U.S. Copyright Law, 88thCong., 2d Sess., 119 (H.R. Judiciary Comm.Print 1964) (hereinafter Copyright Law Revi-sion Part 4) (statement of Harriet Pilpel)).


King, Wiley would prevail. Ante, at 1368.Nevertheless, the Court dismisses this lan-guage, to which all Members of the Quali-ty King Court subscribed, as ill-considereddictum. Ante, at 1368 – 1369. I agreethat the discussion was dictum in the sensethat it was not essential to the Court’sjudgment. See Quality King, 523 U.S., at154, 118 S.Ct. 1125 (GINSBURG, J., con-curring) (‘‘[W]e do not today resolve casesin which the allegedly infringing importswere manufactured abroad.’’). But I dis-agree with the Court’s conclusion that thisdictum was ill considered. Instead, for thereasons explained below, I would hold,consistently with Quality King ’s dictum,that § 602(a)(1) authorizes a copyrightowner to bar the importation of a copymanufactured abroad for sale abroad.

II

The text of the Copyright Act demon-strates that Congress intended to providecopyright owners with a potent remedyagainst the importation of foreign-madecopies of their copyrighted works. As theCourt recognizes, ante, at 1355, this caseturns on the meaning of the phrase ‘‘law-fully made under this title’’ in § 109(a). Inmy view, that phrase is most sensibly readas referring to instances in which a copy’screation is governed by, and conducted incompliance with, Title 17 of the U.S.Code.This reading is consistent with the Court’sinterpretation of similar language in otherstatutes. See Florida Dept. of Revenue v.Piccadilly Cafeterias, Inc., 554 U.S. 33,52–53, 128 S.Ct. 2326, 171 L.Ed.2d 203(2008) (‘‘under’’ in 11 U.S.C. § 1146(a), aBankruptcy Code provision exempting cer-tain asset transfers from stamp taxes,means ‘‘pursuant to’’); Ardestani v. INS,502 U.S. 129, 135, 112 S.Ct. 515, 116L.Ed.2d 496 (1991) (the phrase ‘‘under sec-tion 554’’ in the Equal Access to JusticeAct means ‘‘subject to’’ or ‘‘governed by’’ 5U.S.C. § 554 (internal quotation marks

omitted)). It also accords with dictionarydefinitions of the word ‘‘under.’’ See, e.g.,American Heritage Dictionary 1887 (5thed.2011) (‘‘under’’ means, among otherthings, ‘‘[s]ubject to the authority, rule, orcontrol of’’).

Section 109(a), properly read, affordsKirtsaeng no defense against Wiley’s claimof copyright infringement. The CopyrightAct, it has been observed time and again,does not apply extraterritorially. SeeUnited Dictionary Co. v. G. & C. MerriamCo., 208 U.S. 260, 264, 28 S.Ct. 290, 52L.Ed. 478 (1908) (copyright statute requir-ing that U.S. copyright notices be placed inall copies of a work did not apply to copiespublished abroad because U.S. copyrightlaws have no ‘‘force’’ beyond the UnitedStates’ borders); 4 M. Nimmer & D. Nim-mer, Copyright § 17.02, p. 17–18 (2012)(hereinafter Nimmer) (‘‘[C]opyright lawsdo not have any extraterritorial opera-tion.’’); 4 W. Patry, Copyright § 13:22, p.13–66 (2012) (hereinafter Patry) (‘‘Copy-right laws are rigorously territorial.’’).The printing of Wiley’s foreign-manufac-tured textbooks therefore was not gov-erned by Title 17. The textbooks thuswere not ‘‘lawfully made 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 con-duct constituted copyright infringementunder § 602(a)(1).

The Court’s point of departure is simi-lar to mine. According to the Court, thephrase ‘‘ ‘lawfully made under this title’means made ‘in accordance with’ or ‘incompliance with’ the Copyright Act.’’Ante, at 1358. But the Court overlooksthat, according to the very dictionaries itcites, ante, at 1358 – 1359, the word ‘‘un-der’’ commonly signals a relationship ofsubjection, where one thing is governedor regulated by another. See Black’sLaw Dictionary 1525 (6th ed.1990) (‘‘un-


der’’ ‘‘frequently’’ means ‘‘inferior’’ or‘‘subordinate’’ (internal quotation marksomitted)); 18 Oxford English Dictionary950 (2d ed.1989) (‘‘under’’ means, amongother things, ‘‘[i]n accordance with (someregulative power or principle )’’ (emphasisadded)). See also Webster’s Third NewInternational Dictionary 2487 (1961) (‘‘un-der’’ means, among other things, ‘‘in TTT

a condition of subjection, regulation, orsubordination’’ and ‘‘suffering restriction,restraint, or control by’’). Only by disre-garding this established meaning of ‘‘un-der’’ can the Court arrive at the conclu-sion that Wiley’s foreign-manufacturedtextbooks were ‘‘lawfully made under’’U.S. copyright law, even though that lawdid not govern their creation. It is ano-malous, however, to speak of particularconduct as ‘‘lawful’’ under an inapplicablelaw. For example, one might say thatdriving on the right side of the road inEngland is ‘‘lawful’’ under U.S. law, butthat would be so only because U.S. lawhas nothing to say about the subject.The governing law is English law, andEnglish law demands that driving be doneon the left side of the road.4

The logical implication of the Court’sdefinition of the word ‘‘under’’ is that anycopy manufactured abroad—even a pirati-cal one made without the copyright own-er’s authorization and in violation of thelaw of the country where it was created—would fall within the scope of § 109(a).Any such copy would have been made ‘‘inaccordance with’’ or ‘‘in compliance with’’the U.S. Copyright Act, in the sense thatmanufacturing the copy did not violate the

Act (because the Act does not apply extra-territorially).

The Court rightly refuses to accept suchan absurd conclusion. Instead, it inter-prets § 109(a) as applying only to copieswhose making actually complied with Title17, or would have complied with Title 17had Title 17 been applicable (i.e., had thecopies been made in the United States).See ante, at 1358 (‘‘§ 109(a)’s ‘first sale’doctrine would apply to copyrighted worksas long as their manufacture met the re-quirements of American copyright law.’’).Congress, however, used express languagewhen it called for such a counterfactualinquiry in 17 U.S.C. §§ 602(a)(2) and (b).See § 602(a)(2) (‘‘Importation into theUnited States or exportation from theUnited States, without the authority of theowner of copyright under this title, of cop-ies or phonorecords, the making of whicheither constituted an infringement of copy-right, or which would have constituted aninfringement of copyright if this title hadbeen applicable, is an infringement of theexclusive right to distribute copies or pho-norecords under section 106.’’ (emphasisadded)); § 602(b) (‘‘In a case where themaking of the copies or phonorecordswould have constituted an infringement ofcopyright if this title had been applicable,their importation is prohibited.’’ (emphasisadded)). Had Congress intended courts toengage in a similarly hypothetical inquiryunder § 109(a), Congress would presum-ably have included similar language in thatsection. See Russello v. United States,464 U.S. 16, 23, 104 S.Ct. 296, 78 L.Ed.2d17 (1983) (‘‘ ‘[W]here Congress includes

4. The Court asserts that my position gives theword ‘‘lawfully’’ in § 109(a) ‘‘little, if any,linguistic work to do.’’ Ante, at 1359. That isnot so. My reading gives meaning to eachword in the phrase ‘‘lawfully made under thistitle.’’ The word ‘‘made’’ signifies that theconduct at issue is the creation or manufac-ture of a copy. See Webster’s Third NewInternational Dictionary 1356 (1961) (defin-

ing ‘‘made’’ as ‘‘artificially produced by amanufacturing process’’). The word ‘‘lawful-ly’’ indicates that for § 109(a) to apply, thecopy’s creation must have complied withsome body of law. Finally, the prepositionalphrase ‘‘under this title’’ clarifies what thatbody of law is—namely, the copyright pre-scriptions contained in Title 17 of theU.S.Code.


particular language in one section of astatute but omits it in another section ofthe same Act, it is generally presumedthat Congress acts intentionally and pur-posely in the disparate inclusion or exclu-sion.’ ’’ (quoting United States v. WongKim Bo, 472 F.2d 720, 722 (C.A.5 1972)(per curiam ); brackets in original)).5

Not only does the Court adopt an unnat-ural construction of the § 109(a) phrase‘‘lawfully made under this title.’’ Concomi-tantly, the Court reduces § 602(a)(1) toinsignificance. As the Court appears toacknowledge, see ante, at 1367 – 1368, theonly independent effect § 602(a)(1) has un-der today’s decision is to prohibit unautho-rized importations carried out by personswho merely have possession of, but do notown, the imported copies. See 17 U.S.C.§ 109(a) (§ 109(a) applies to any ‘‘owner ofa 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, at1367, it hardly suffices to give the owner’simportation right the scope Congress in-tended it to have. Congress used broadlanguage in § 602(a)(1); it did so toachieve a broad objective. Had Congressintended simply to provide a copyrightremedy against larcenous lessees, licen-sees, consignees, and bailees of films andother copyright-protected goods, see ante,at 1360 – 1361, 1367 – 1368, it likely wouldhave used language tailored to that narrowpurpose. See 2 Nimmer § 8.12[B][6][c], at8–184.31, n. 432 (‘‘It may be wonderedwhether TTT potential causes of action[against licensees and the like] are morethan theoretical.’’). See also ante, at 1372(KAGAN, J., concurring) (the Court’s deci-sion limits § 602(a)(1) ‘‘to a fairly esotericset of applications’’).7

5. Attempting to show that my reading of§ 109(a) is susceptible to the same criticism,the Court points to the now-repealed ‘‘manu-facturing clause,’’ which required ‘‘copies of awork consisting preponderantly of nondra-matic literary material TTT in the English lan-guage’’ to be ‘‘manufactured in the UnitedStates or Canada.’’ Copyright Act of 1976,§ 601(a), 90 Stat. 2588. Because Congressexpressly referred to manufacturing in thisprovision, the Court contends, the phrase‘‘lawfully made under this title’’ in § 109(a)cannot mean ‘‘manufactured in the UnitedStates.’’ Ante, at 1364. This argument is anon sequitur. I do not contend that thephrases ‘‘lawfully made under this title’’ and‘‘manufactured in the United States’’ are in-terchangeable. To repeat, I read the phrase‘‘lawfully made under this title’’ as referringto instances in which a copy’s creation isgoverned by, and conducted in compliancewith, Title 17 of the U.S.Code. See supra, at1376. Not all copies ‘‘manufactured in theUnited States’’ will satisfy this standard. Forexample, piratical copies manufactured in theUnited States without the copyright owner’sauthorization are not ‘‘lawfully made under[Title 17].’’ Nor would the phrase ‘‘lawfullymanufactured in the United States’’ be anexact substitute for ‘‘lawfully made under this

title.’’ The making of a copy may be lawfulunder Title 17 yet still violate some otherprovision of law. Consider, for example, acopy made with the copyright owner’s author-ization by workers who are paid less thanminimum wage. The copy would be ‘‘lawful-ly made under [Title 17]’’ in the sense that itscreation would not violate any provision ofthat title, but the copy’s manufacturing wouldnonetheless be unlawful due to the violationof the minimum-wage laws.

6. When § 602(a)(1) was originally enacted in1976, it played an additional role—providinga private cause of action against importers ofpiratical goods. See Quality King, 523 U.S.,at 146, 118 S.Ct. 1125. In 2008, however,Congress amended § 602 to provide for sucha cause of action in § 602(a)(2), which pro-hibits the unauthorized ‘‘[i]mportation intothe United States TTT of copies or phonorec-ords, the making of which either constitutedan infringement of copyright, or which wouldhave constituted an infringement of copyrightif [Title 17] had been applicable.’’ See PROI-PA, § 105(b)(3), 122 Stat. 4259–4260. Thus,under the Court’s interpretation, the only con-duct reached by § 602(a)(1) but not§ 602(a)(2) is a nonowner’s unauthorized im-portation of a nonpiratical copy.


The Court’s decision also overwhelms 17U.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 ofcopies without the copyright owner’s au-thorization for certain governmental, per-sonal, scholarly, educational, and religiouspurposes. 17 U.S.C. § 602(a)(3). Copiesimported under these exceptions ‘‘will of-ten be lawfully made gray market goodspurchased through normal market chan-nels abroad.’’ 2 Goldstein § 7.6.1.2(a), at7:141.9 But if, as the Court holds, suchcopies can in any event be imported byvirtue of § 109(a), § 602(a)(3)’s work hasalready been done. For example, hadCongress conceived of § 109(a)’s sweep asthe Court does, what earthly reason wouldthere be to provide, as Congress did in

§ 602(a)(3)(C), that a library may import‘‘no more than five copies’’ of a non-audio-visual work for its ‘‘lending or archivalpurposes’’?

The far more plausible reading of§§ 109(a) and 602(a), then, is that Con-gress intended § 109(a) to apply to copiesmade in the United States, not to copiesmanufactured and sold abroad. Thatreading of the first sale and importationprovisions leaves § 602(a)(3)’s exceptionswith real, meaningful work to do. SeeTRW Inc. v. Andrews, 534 U.S. 19, 31, 122S.Ct. 441, 151 L.Ed.2d 339 (2001) (‘‘It is acardinal principle of statutory constructionthat a statute ought, upon the whole, to beso construed that, if it can be prevented,no clause, sentence, or word shall be su-perfluous, void, or insignificant.’’ (internalquotation marks omitted)). In the rangeof circumstances covered by the excep-tions, § 602(a)(3) frees individuals and en-

7. Notably, the Court ignores the history of§ 602(a)(1), which reveals that the primarypurpose of the prescription was not to pro-vide a remedy against rogue licensees, con-signees, and bailees, against whom copyrightowners could frequently assert breach-of-con-tract claims even in the absence of§ 602(a)(1). Instead, the primary purpose of§ 602(a)(1) was to reach third-party import-ers, enterprising actors like Kirtsaeng, againstwhom copyright owners could not assert con-tract claims due to lack of privity. See PartIII, infra.

8. Section 602(a)(3) provides:

‘‘This subsection [i.e., § 602(a) ] does not ap-ply to—

‘‘(A) importation or exportation of copiesor phonorecords under the authority or forthe use of the Government of the UnitedStates or of any State or political subdivisionof a State, but not including copies or phono-records for use in schools, or copies of anyaudiovisual work imported for purposes otherthan archival use;

‘‘(B) importation or exportation, for theprivate use of the importer or exporter andnot for distribution, by any person with re-spect to no more than one copy or phonorec-

ord of any one work at any one time, or byany person arriving from outside the UnitedStates or departing from the United Stateswith respect to copies or phonorecords form-ing part of such person’s personal baggage;or

‘‘(C) importation by or for an organizationoperated for scholarly, educational, or reli-gious purposes and not for private gain, withrespect to no more than one copy of an audio-visual work solely for its archival purposes,and no more than five copies or phonorecordsof any other work for its library lending orarchival purposes, unless the importation ofsuch copies or phonorecords is part of anactivity consisting of systematic reproductionor distribution, engaged in by such organiza-tion in violation of the provisions of section108(g)(2).’’

9. The term ‘‘gray market good’’ refers to agood that is ‘‘imported outside the distribu-tion channels that have been contractuallynegotiated by the intellectual property own-er.’’ Forsyth & Rothnie, Parallel Imports, inThe Interface Between Intellectual PropertyRights and Competition Policy 429 (S. Ander-man ed.2007). Such goods are also common-ly called ‘‘parallel imports.’’ Ibid.


tities who purchase foreign-made copiesabroad from the requirement they wouldotherwise face under § 602(a)(1) of obtain-ing the copyright owner’s permission toimport the copies into the United States.10

III

The history of § 602(a)(1) reinforces theconclusion I draw from the text of therelevant provisions: § 109(a) does not ap-ply to copies manufactured abroad. Sec-tion 602(a)(1) was enacted as part of theCopyright Act of 1976, 90 Stat. 2589–2590.That Act was the product of a lengthyrevision effort overseen by the U.S. Copy-right Office. See Mills Music, Inc. v.Snyder, 469 U.S. 153, 159–160, 105 S.Ct.638, 83 L.Ed.2d 556 (1985). In its initial1961 report on recommended revisions, theCopyright Office noted that publishers had‘‘suggested that the [then-existing] importban on piratical copies should be extendedto bar the importation of TTT foreign edi-tion[s]’’ in violation of ‘‘agreements to di-vide international markets for copyrightedworks.’’ Copyright Law Revision: Reportof the Register of Copyrights on the Gen-eral Revision of the U.S. Copyright Law,87th Cong., 1st Sess., 126 (H.R. JudiciaryComm. Print 1961) (hereinafter Copyright

Law Revision). See Copyright Act of1947, § 106, 61 Stat. 663 (‘‘The importationinto the United States TTT of any piraticalcopies of any work copyrighted in theUnited States TTT is prohibited.’’). TheCopyright Office originally recommendedagainst such an extension of the importa-tion ban, reasoning that enforcement ofterritorial restrictions was best left to con-tract law. Copyright Law Revision 126.

Publishing-industry representatives ar-gued strenuously against the position ini-tially taken by the Copyright Office. At a1962 panel discussion on the CopyrightOffice’s report, for example, Horace Mang-es of the American Book Publishers Coun-cil stated:

‘‘When a U.S. book publisher enters intoa contract with a British publisher toacquire exclusive U.S. rights for a par-ticular book, he often finds that the En-glish edition TTT of that particular bookfinds its way into this country. Now it’sall right to say, ‘Commence a lawsuit forbreach of contract.’ But this is expen-sive, burdensome, and, for the mostpart, ineffective.’’ Copyright Law Revi-sion Part 2: Discussion and Commentson Report of the Register of Copyrights

10. The Court asserts that its reading of§ 109(a) is bolstered by § 104, which extendsthe copyright ‘‘protection[s]’’ of Title 17 to awide variety of foreign works. See ante, at1359 – 1360. The ‘‘protection under this ti-tle’’ afforded by § 104, however, is merelyprotection against infringing conduct withinthe United States, the only place where Title17 applies. See 4 W. Patry, Copyright§ 13:44.10, pp. 13–128 to 13–129 (2012)(hereinafter Patry). Thus, my reading of thephrase ‘‘under this title’’ in § 109(a) is consis-tent with Congress’ use of that phrase in§ 104. Furthermore, § 104 describes whichworks are entitled to copyright protection un-der U.S. law. But no one disputes that Wi-ley’s copyrights in the works at issue in thiscase are valid. The only question is whetherKirtsaeng’s importation of copies of thoseworks infringed Wiley’s copyrights. It is ba-

sic to copyright law that ‘‘[o]wnership of acopyright TTT is distinct from ownership ofany material object in which the work isembodied.’’ 17 U.S.C. § 202. See also § 101(‘‘ ‘Copies’ are material objects, other thanphonorecords, in which a work is fixed by anymethod now known or later developed, andfrom which the work can be perceived, repro-duced, or otherwise communicated, either di-rectly or with the aid of a machine or de-vice.’’). Given the distinction copyright lawdraws between works and copies, § 104 isinapposite to the question here presented. 4Patry § 13:44.10, at 13–129 (‘‘There is noconnection, linguistically or substantively, be-tween Section[s] 104 and 109: Section 104deals with national eligibility for the intangi-ble work of authorship; Section 109(a) dealswith the tangible, physical embodiment of thework, the ‘copy.’ ’’).


on the General Revision of the U.S.Copyright Law, 88th Cong., 1st Sess.,212 (H.R. Judiciary Comm. Print 1963).

Sidney Diamond, representing LondonRecords, elaborated on Manges’ state-ment. ‘‘There are many situations,’’ heexplained, ‘‘in which it is not necessarily aquestion of the inadequacy of a contractremedy—in the sense that it may be diffi-cult or not quick enough to solve the par-ticular problem.’’ Id., at 213. ‘‘Very fre-quently,’’ Diamond stated, publishers ‘‘runinto a situation where TTT copies of [a]work TTT produced in a foreign countryTTT 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 turnship[s] it over’’ to the United States, theindividual’s conduct would not ‘‘violate[any] contract between the British and theAmerican publisher.’’ Ibid. In such a case,‘‘no possibility of any contract remedy’’would exist. Ibid. The facts of Kirtsaeng’scase fit Diamond’s example, save that thecopies at issue here were printed and ini-tially sold in Asia rather than Great Brit-ain.

After considering comments on its 1961report, the Copyright Office ‘‘prepared apreliminary draft of provisions for a newcopyright statute.’’ Copyright Law Revi-sion Part 3: Preliminary Draft for RevisedU.S. Copyright Law and Discussions andComments on the Draft, 88th Cong., 2dSess., V (H.R. Judiciary Comm. Print1964). Section 44 of the draft statute ad-dressed the concerns raised by publishing-

industry representatives. In particular,§ 44(a) provided:

‘‘Importation into the United States ofcopies or records of a work for the pur-pose of distribution to the public shall, ifsuch articles are imported without theauthority of the owner of the exclusiveright to distribute copies or records un-der this title, constitute an infringementof copyright actionable under section 35[i.e., the section providing for a privatecause of action for copyright infringe-ment].’’ Id., at 32–33.

In a 1964 panel discussion regarding thedraft statute, Abe Goldman, the CopyrightOffice’s General Counsel, left no doubtabout the meaning of § 44(a). It repre-sented, he explained, a ‘‘shif[t]’’ from theCopyright Office’s 1961 report, which hadrecommended against using copyright lawto facilitate publishers’ efforts to segmentinternational markets. Copyright LawRevision Part 4: Further Discussions andComments on Preliminary Draft for Re-vised U.S. Copyright Law, 88th Cong., 2dSess., 203 (H.R. Judiciary Comm. Print1964). Section 44(a), Goldman stated,would allow copyright owners to bring in-fringement actions against importers of‘‘foreign copies that were made underproper authority.’’ Ibid. See also id., at205–206 (Goldman agreed with a speaker’scomment that § 44(a) ‘‘enlarge[d]’’ U.S.copyright law by extending import prohibi-tions ‘‘to works legally produced in Eu-rope’’ and other foreign countries).11

The next step in the copyright revisionprocess was the introduction in Congress

11. As the Court observes, ante, at 1369, IrwinKarp of the Authors League of America statedat the 1964 panel discussion that § 44(a) rancounter to ‘‘the very basic concept of copy-right law that, once you’ve sold a copy legally,you can’t restrict its resale.’’ Copyright LawRevision Part 4, at 212. When asked if hewas ‘‘presenting TTT an argument against’’

§ 44(a), however, Karp responded that hewas ‘‘neutral on th[e] provision.’’ Id., at 211.There is thus little reason to believe that anychanges to the wording of § 44(a) before itscodification in § 602(a) were made in re-sponse to Karp’s discussion of ‘‘the problemof restricting [the] transfer of TTT lawfullyobtained [foreign] copies.’’ Ibid.


of a draft bill on July 20, 1964. See Copy-right Law Revision Part 5: 1964 RevisionBill with Discussions and Comments, 89thCong., 1st Sess., III (H.R. Judiciary Comm.Print 1965). After another round of publiccomments, a revised bill was introduced onFebruary 4, 1965. See Copyright LawRevision Part 6: Supplementary Report ofthe Register of Copyrights on the GeneralRevision of the U.S. Copyright Law: 1965Revision Bill, 89th Cong., 1st Sess., V (H.R.Judiciary Comm. Print 1965) (hereinafterCopyright Law Revision Part 6). In lan-guage closely resembling the statutorytext later enacted by Congress, § 602(a) ofthe 1965 bill provided:

‘‘Importation into the United States,without the authority of the owner ofcopyright under this title, of copies orphonorecords of a work for the purposeof distribution to the public is an in-fringement of the exclusive right to dis-tribute copies or phonorecords undersection 106, actionable under section501.’’ Id., at 292.12

The Court implies that the 1965 bill’s‘‘explici[t] refer[ence] to § 106’’ showed amarked departure from § 44(a) of theCopyright Office’s prior draft. Ante, at1369. The Copyright Office, however, didnot see it that way. In its summary of the1965 bill’s provisions, the Copyright Officeobserved that § 602(a) of the 1965 bill, like§ 44(a) of the Copyright Office’s priordraft, see supra, at 1381 – 1382, permittedcopyright owners to bring infringement ac-tions against unauthorized importers incases ‘‘where the copyright owner had au-thorized the making of [the imported] cop-

ies in a foreign country for distributiononly in that country.’’ Copyright Law Re-vision Part 6, at 149–150. See also id., atXXVI (Under § 602(a) of the 1965 bill, ‘‘[a]nunauthorized importer could be enjoinedand sued for damages both where the cop-ies or phonorecords he was importing were‘piratical’ (that is, where their makingwould have constituted an infringement ifthe U.S. copyright law could have beenapplied), and where their making was ‘law-ful.’ ’’).

The current text of § 602(a)(1) was final-ly enacted into law in 1976. See CopyrightAct of 1976, § 602(a), 90 Stat. 2589–2590.The House and Senate Committee Reportson the 1976 Act demonstrate that Con-gress understood, as did the CopyrightOffice, just what that text meant. BothReports state:

‘‘Section 602 [deals] with two separatesituations: importation of ‘piratical’ arti-cles (that is, copies or phonorecordsmade without any authorization of thecopyright owner), and unauthorized im-portation of copies or phonorecords thatwere lawfully made. The general ap-proach of section 602 is to make unau-thorized importation an act of infringe-ment in both cases, but to permit theBureau of Customs to prohibit importa-tion only of ‘piratical’ articles.’’ S.Rep.No. 94–473, p. 151 (1975) (emphasis add-ed). See also H.R.Rep. No. 94–1476, p.169 (1976) (same).

In sum, the legislative history of theCopyright Act of 1976 is hardly ‘‘inconclu-sive.’’ Ante, at 1369. To the contrary, itconfirms what the plain text of the Act

12. There is but one difference between thislanguage from the 1965 bill and the corre-sponding language in the current version of§ 602(a)(1): In the current version, thephrase ‘‘for the purpose of distribution to thepublic’’ is omitted and the phrase ‘‘that havebeen acquired outside the United States’’ ap-pears in its stead. There are no material

differences between the quoted language fromthe 1965 bill and the corresponding languagecontained in the 1964 bill. See CopyrightLaw Revision Part 6: Supplementary Reportof the Register of Copyrights on the GeneralRevision of the U.S. Copyright Law: 1965Revision Bill, 89th Cong., 1st Sess., 292–293(H.R. Judiciary Comm. Print 1965).


conveys: Congress intended § 602(a)(1) toprovide copyright owners with a remedyagainst the unauthorized importation offoreign-made copies of their works, even ifthose copies were made and sold abroadwith the copyright owner’s authorization.13

IV

Unlike the Court’s holding, my positionis consistent with the stance the UnitedStates has taken in international-trade ne-gotiations. This case bears on the highlycontentious trade issue of interterritorialexhaustion. The issue arises because in-tellectual property law is territorial in na-ture, see supra, at 1376, which means thatcreators of intellectual property ‘‘may holda set of parallel’’ intellectual propertyrights under the laws of different nations.Chiappetta, The Desirability of Agreeingto Disagree: The WTO, TRIPS, Interna-tional IPR Exhaustion and a Few OtherThings, 21 Mich. J. Int’l L. 333, 340–341(2000) (hereinafter Chiappetta). There isno international consensus on whether thesale in one country of a good incorporatingprotected intellectual property exhauststhe intellectual property owner’s right tocontrol the distribution of that good else-where. Indeed, the members of the WorldTrade Organization, ‘‘agreeing to dis-agree,’’ 14 provided in Article 6 of theAgreement on Trade–Related Aspects ofIntellectual Property Rights (TRIPS),Apr. 15, 1994, 33 I.L.M. 1197, 1200, that‘‘nothing in this Agreement shall be usedto address the issue of TTT exhaustion.’’See Chiappetta 346 (observing that ex-haustion of intellectual property rights was

‘‘hotly debated’’ during the TRIPS negotia-tions and that Article 6 ‘‘reflects [the nego-tiators’] ultimate inability to agree’’ on asingle international standard). Similarlanguage appears in other treaties towhich the United States is a party. SeeWorld 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 thefreedom of Contracting Parties to deter-mine the conditions, if any, under whichthe exhaustion of the right [to control dis-tribution of copies of a copyrighted work]applies after the first sale or other trans-fer of ownership of the original or a copyof the work with the authorization of theauthor.’’); WIPO Performances and Pho-nograms Treaty, Art. 8(2), Dec. 20, 1996,S. Treaty Doc. No. 105–17, p. 28 (contain-ing language nearly identical to Article6(2) of the WIPO Copyright Treaty).

In the absence of agreement at the in-ternational level, each country has beenleft to choose for itself the exhaustionframework it will follow. One option is anational-exhaustion regime, under which acopyright owner’s right to control distribu-tion of a particular copy is exhausted onlywithin the country in which the copy issold. See Forsyth & Rothnie, Parallel Im-ports, in The Interface Between Intellectu-al Property Rights and Competition Policy429, 430 (S. Anderman ed.2007) (hereinaf-ter Forsyth & Rothnie). Another option isa rule of international exhaustion, underwhich the authorized distribution of a par-ticular copy anywhere in the world ex-hausts the copyright owner’s distribution

13. The Court purports to find support for itsposition in the House and Senate CommitteeReports on the 1976 Copyright Act. Ante, at1370. It fails to come up with anything in theAct’s legislative history, however, showingthat Congress understood the words ‘‘lawfullymade under this title’’ in § 109(a) to encom-pass foreign-made copies.

14. Chiappetta, The Desirability of Agreeing toDisagree: The WTO, TRIPS, InternationalIPR Exhaustion and a Few Other Things, 21Mich. J. Int’l L. 333, 340 (2000) (hereinafterChiappetta) (internal quotation marks omit-ted).


right everywhere with respect to thatcopy. See ibid. The European Union hasadopted the intermediate approach of re-gional exhaustion, under which the sale ofa copy anywhere within the EuropeanEconomic Area exhausts the copyrightowner’s distribution right throughout thatregion. See id., at 430, 445. Section602(a)(1), in my view, ties the UnitedStates to a national-exhaustion framework.The Court’s decision, in contrast, placesthe United States solidly in the interna-tional-exhaustion camp.

Strong arguments have been made bothin favor of, and in opposition to, interna-tional exhaustion. See Chiappetta 360(‘‘[r]easonable people making valid pointscan, and do, reach conflicting conclusions’’regarding the desirability of internationalexhaustion). International exhaustion sub-jects copyright-protected goods to compe-tition from lower priced imports and, tothat extent, benefits consumers. Corre-spondingly, copyright owners profit from anational-exhaustion regime, which also en-larges the monetary incentive to createnew copyrightable works. See Forsyth &Rothnie 432–437 (surveying arguments forand against international exhaustion).

Weighing the competing policy concerns,our Government reached the conclusionthat widespread adoption of the interna-tional-exhaustion framework would be in-consistent with the long-term economic in-

terests of the United States. See Brief forUnited States as Amicus Curiae in Quali-ty King, O.T.1997, No. 96–1470, pp. 22–26(hereinafter Quality King Brief).15 Ac-cordingly, the United States has steadfast-ly ‘‘taken the position in internationaltrade negotiations that domestic copyrightowners should TTT have the right to pre-vent the unauthorized importation of cop-ies of their work sold abroad.’’ Id., at 22.The United States has ‘‘advanced this posi-tion in multilateral trade negotiations,’’ in-cluding the negotiations on the TRIPSAgreement. Id., at 24. See also D. Ger-vais, The TRIPS Agreement: DraftingHistory and Analysis § 2.63, p. 199 (3ded.2008). It has also taken a dim view ofour trading partners’ adoption of legisla-tion incorporating elements of internation-al exhaustion. See Clapperton & Corones,Locking in Customers, Locking Out Com-petitors: Anti–Circumvention Laws inAustralia and Their Potential Effect onCompetition in High Technology Markets,30 Melbourne U.L.Rev. 657, 664 (2006)(United States expressed concern regard-ing international-exhaustion legislation inAustralia); Monten, Comment, The Incon-sistency Between Section 301 and TRIPS:Counterproductive With Respect to theFuture of International Protection of Intel-lectual Property Rights? 9 Marq. Intellec-tual Property L.Rev. 387, 417–418 (2005)(same with respect to New Zealand andTaiwan).

15. The Court states that my ‘‘reliance on theSolicitor General’s position in Quality King isundermined by his agreement in that casewith [the] reading of § 109(a)’’ that the Courttoday adopts. Ante, at 1371. The UnitedStates’ principal concern in both Quality Kingand this case, however, has been to protectcopyright owners’ ‘‘right to prevent parallelimports.’’ Brief for United States as AmicusCuriae in Quality King, O.T.1997, No. 96–1470, p. 6 (hereinafter Quality King Brief).See also Brief for United States as AmicusCuriae 14 (arguing that Kirtsaeng’s interpre-

tation of § 109(a), which the Court adopts,would ‘‘subver[t] Section 602(a)(1)’s ban onunauthorized importation’’). In Quality King,the Solicitor General urged this Court to holdthat § 109(a)’s codification of the first saledoctrine does not limit the right to controlimportation set forth in § 602(a). QualityKing Brief 7–30. After Quality King rejectedthat contention, the United States reconsid-ered its position, and it now endorses theinterpretation of the § 109(a) phrase ‘‘lawful-ly made under this title’’ I would adopt.Brief for United States as Amicus Curiae 6–7,13–14.


Even if the text and history of the Copy-right Act were ambiguous on the answerto the question this case presents—whichthey are not, see Parts II–III, supra 16—Iwould resist a holding out of accord withthe firm position the United States hastaken on exhaustion in international nego-tiations. Quality King, I acknowledge,discounted the Government’s concernsabout potential inconsistency with UnitedStates obligations under certain bilateraltrade agreements. See 523 U.S., at 153–154, 118 S.Ct. 1125. See also QualityKing Brief 22–24 (listing the agreements).That decision, however, dealt only withcopyright-protected products made in theUnited States. See 523 U.S., at 154, 118S.Ct. 1125 (GINSBURG, J., concurring).Quality King left open the questionwhether owners of U.S. copyrights couldretain control over the importation of cop-ies manufactured and sold abroad—a pointthe Court obscures, see ante, at 1371 (ar-guing that Quality King ‘‘significantlyeroded’’ the national-exhaustion principlethat, in my view, § 602(a)(1) embraces).The Court today answers that questionwith a resounding ‘‘no,’’ and in doing so, itrisks undermining the United States’ cred-ibility on the world stage. While the Gov-ernment has urged our trading partners torefrain from adopting international-ex-haustion regimes that could benefit con-sumers within their borders but would im-pact adversely on intellectual-propertyproducers in the United States, the Courtembraces an international-exhaustion rulethat could benefit U.S. consumers but

would likely disadvantage foreign holdersof U.S. copyrights. This dissonancescarcely enhances the United States’ ‘‘roleas a trusted partner in multilateral en-deavors.’’ Vimar Seguros y Reaseguros,S.A. v. M/V Sky Reefer, 515 U.S. 528, 539,115 S.Ct. 2322, 132 L.Ed.2d 462 (1995).

V

I turn now to the Court’s justificationsfor a decision difficult to reconcile with theCopyright Act’s text and history.

A

The Court asserts that its holding ‘‘isconsistent with antitrust laws that ordi-narily forbid market divisions.’’ Ante, at1371. See also ante, at 1363 (again refer-ring to antitrust principles). Section602(a)(1), however, read as I do and as theGovernment does, simply facilitates copy-right owners’ efforts to impose ‘‘verticalrestraints’’ on distributors of copies oftheir works. See Forsyth & Rothnie 435(‘‘Parallel importation restrictions enablemanufacturers and distributors to erect‘vertical restraints’ in the market throughexclusive distribution agreements.’’). Seegenerally Leegin Creative Leather Prod-ucts, Inc. v. PSKS, Inc., 551 U.S. 877, 127S.Ct. 2705, 168 L.Ed.2d 623 (2007) (dis-cussing vertical restraints). We have heldthat vertical restraints are not per se ille-gal under § 1 of the Sherman Act, 15U.S.C. § 1, because such ‘‘restraints canhave procompetitive effects.’’ 551 U.S., at881–882, 127 S.Ct. 2705.17

16. Congress hardly lacks capacity to providefor international exhaustion when that is itsintent. Indeed, Congress has expressly pro-vided for international exhaustion in the nar-row context of semiconductor chips embody-ing 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 immu-nizes unauthorized importation.’’).

17. Despite the Court’s suggestion to the con-trary, this case in no way implicates the per seantitrust prohibition against horizontal‘‘ ‘[a]greements between competitors to allo-cate territories to minimize competition.’ ’’Ante, at 1371 (quoting Palmer v. BRG of Ga.,Inc., 498 U.S. 46, 49, 111 S.Ct. 401, 112


B

The Court sees many ‘‘horribles’’ follow-ing from a holding that the § 109(a)phrase ‘‘lawfully made under this title’’does not encompass foreign-made copies.Ante, at 1365 (internal quotation marksomitted). If § 109(a) excluded foreign-made copies, the Court fears, then copy-right owners could exercise perpetual con-trol over the downstream distribution orpublic display of such copies. A ruling inWiley’s favor, the Court asserts, wouldshutter libraries, put used-book dealersout of business, cripple art museums, andprevent the resale of a wide range of con-sumer goods, from cars to calculators.Ante, at 1364 – 1366. See also ante, at1372 (KAGAN, J., concurring) (expressingconcern about ‘‘imposing downstream lia-bility on those who purchase and resell inthe United States copies that happen tohave been manufactured abroad’’). Copy-right law and precedent, however, erectbarriers to the anticipated horribles.18

1

Recognizing that foreign-made copiesfall outside the ambit of § 109(a) would notmean they are forever free of the first saledoctrine. As earlier observed, see supra,at 1374, the Court stated that doctrineinitially in its 1908 Bobbs–Merrill decision.At that time, no statutory provision ex-

pressly codified the first sale doctrine. In-stead, copyright law merely provided thatcopyright owners had ‘‘the sole liberty ofprinting, reprinting, publishing, complet-ing, copying, executing, finishing, andvending’’ their works. Copyright Act of1891, § 1, 26 Stat. 1107.

In Bobbs–Merrill, the Court addressedthe scope of the statutory right to‘‘ven[d].’’ In granting that right, theCourt held, Congress did not intend topermit copyright owners ‘‘to fasten TTT arestriction upon the subsequent alienationof the subject-matter of copyright after theowner had parted with the title to one whohad acquired full dominion over it and hadgiven a satisfactory price for it.’’ 210 U.S.,at 349–350, 28 S.Ct. 722. ‘‘[O]ne who hassold a copyrighted article TTT without re-striction,’’ the Court explained, ‘‘has partedwith all right to control the sale of it.’’ Id.,at 350, 28 S.Ct. 722. Thus, ‘‘[t]he purchas-er of a book, once sold by authority of theowner of the copyright, may sell it again,although he could not publish a new edi-tion of it.’’ Ibid.

Under the logic of Bobbs–Merrill, thesale of a foreign-manufactured copy in theUnited States carried out with the copy-right owner’s authorization would exhaustthe copyright owner’s right to ‘‘vend’’ thatcopy. The copy could thenceforth be re-sold, lent out, or otherwise redistributed

L.Ed.2d 349 (1990) (per curiam )). Wiley isnot requesting authority to enter into collu-sive agreements with other textbook publish-ers that would, for example, make Wiley theexclusive supplier of textbooks on particularsubjects within particular geographic regions.Instead, Wiley asserts no more than the pre-rogative to impose vertical restraints on thedistribution of its own textbooks. See Hoven-kamp, Post–Sale Restraints and CompetitiveHarm: The First Sale Doctrine in Perspec-tive, 66 N.Y.U. Ann. Survey Am. L. 487, 488(2011) (‘‘vertical restraints’’ include ‘‘limits[on] the way a seller’s own product can bedistributed’’).

18. As the Court observes, ante, at 1371, theUnited States stated at oral argument that thetypes of ‘‘horribles’’ predicted in the Court’sopinion would, if they came to pass, be‘‘worse than the frustration of market seg-mentation’’ that will result from the Court’sinterpretation of § 109(a). Tr. of Oral Arg.51. The United States, however, recognizedthat this purported dilemma is a false one.As the United States explained, the Court’shorribles can be avoided while still givingmeaningful effect to § 602(a)(1)’s ban on un-authorized importation. Ibid.


without further authorization from thecopyright owner. Although § 106(3) usesthe word ‘‘distribute’’ rather than ‘‘vend,’’there is no reason to think Congress in-tended the word ‘‘distribute’’ to bear ameaning different from the constructionthe Court gave to the word ‘‘vend’’ inBobbs–Merrill. See ibid. (emphasizingthat the question before the Court was‘‘purely [one] of statutory construction’’).19

Thus, in accord with Bobbs–Merrill, thefirst authorized distribution of a foreign-made copy in the United States exhauststhe copyright owner’s distribution rightunder § 106(3). After such an authorizeddistribution, a library may lend, or a used-book dealer may resell, the foreign-madecopy without seeking the copyright own-er’s permission. Cf. ante, at 1364 – 1365.

For example, if Wiley, rather than Kirt-saeng, had imported into the United Statesand then sold the foreign-made textbooksat issue in this case, Wiley’s § 106(3) dis-

tribution right would have been exhaustedunder the rationale of Bobbs–Merrill.Purchasers of the textbooks would thus befree to dispose of the books as they wishedwithout first gaining a license from Wiley.

This line of reasoning, it must be ac-knowledged, significantly curtails the in-dependent effect of § 109(a). If, as Imaintain, the term ‘‘distribute’’ in § 106(3)incorporates the first sale doctrine by vir-tue of Bobbs–Merrill, then § 109(a)’s codi-fication of that doctrine adds little to theregulatory regime.20 Section 109(a), how-ever, does serve as a statutory bulwarkagainst courts deviating from Bobbs–Mer-rill in a way that increases copyrightowners’ control over downstream distribu-tion, and legislative history indicates thatis precisely the role Congress intended§ 109(a) to play. Congress first codifiedthe first sale doctrine in § 41 of theCopyright Act of 1909, 35 Stat. 1084.21 It

19. It appears that the Copyright Act of 1976omitted the word ‘‘vend’’ and introduced theword ‘‘distribute’’ to avoid the ‘‘redun-dan[cy]’’ present in pre–1976 law. CopyrightLaw Revision: Report of the Register ofCopyrights on the General Revision of theU.S. Copyright Law, 87th Cong., 1st Sess., 21(H.R. Judiciary Comm. Print 1961) (notingthat the exclusive rights to ‘‘publish’’ and‘‘vend’’ works under the Copyright Act of1947, § 1(a), 61 Stat. 652–653, were ‘‘redun-dant’’).

20. My position that Bobbs–Merrill lives on asa limiting construction of the § 106(3) distri-bution right does not leave § 109(a) with nowork to do. There can be little doubt that thebooks at issue in Bobbs–Merrill were publish-ed and first sold in the United States. SeeBobbs–Merrill Co. v. Straus, 139 F. 155, 157(C.C.S.D.N.Y.1905) (the publisher claimingcopyright infringement in Bobbs–Merrill wasincorporated and had its principal office inIndiana). See also Copyright Act of 1891,§ 3, 26 Stat. 1107–1108 (generally prohibitingimportation, even by the copyright owner, offoreign-manufactured copies of copyrightedbooks); 4 Patry § 13:40, at 13–111 (under the

Copyright Act of 1891, ‘‘copies of books byboth foreign and U.S. authors had to be print-ed in the United States’’). But cf. ante, at1363 (asserting, without acknowledging the1891 Copyright Act’s general prohibitionagainst the importation of foreign-made cop-ies of copyrighted books, that the Court isunable to find any ‘‘geographical distinctionsTTT in Bobbs–Merrill ’’). Thus, exhaustion oc-curs under Bobbs–Merrill only when a copy isdistributed within the United States with thecopyright owner’s permission, not when it isdistributed abroad. But under § 109(a), asinterpreted in Quality King, any authorizeddistribution of a U.S.-made copy, even a dis-tribution occurring in a foreign country, ex-hausts the copyright owner’s distributionright under § 106(3). See 523 U.S., at 145,n. 14, 118 S.Ct. 1125. Section 109(a) there-fore provides for exhaustion in a circum-stance not reached by Bobbs–Merrill.

21. Section 41 of the 1909 Act provided:‘‘[N]othing in this Act shall be deemed toforbid, prevent, or restrict the transfer of anycopy of a copyrighted work the possession ofwhich has been lawfully obtained.’’ 35 Stat.1084. This language was repeated without


did so, the House Committee Report onthe 1909 Act explains, ‘‘in order to makeTTT clear that [Congress had] no intention[of] enlarg[ing] in any way the construc-tion to be given to the word ‘vend.’ ’’H.R.Rep. No. 2222, 60th Cong., 2d Sess.,19 (1909). According to the CommitteeReport, § 41 was ‘‘not intended to change[existing law] in any way.’’ Ibid. The po-sition I have stated and explained accordswith this expression of congressional in-tent. In enacting § 41 and its successors,I would hold, Congress did not ‘‘changeTTT existing law,’’ ibid., by stripping theword ‘‘vend’’ (and thus its substitute ‘‘dis-tribute’’) of the limiting construction im-posed in Bobbs–Merrill.

In any event, the reading of the Copy-right Act to which I subscribe honors Con-gress’ aim in enacting § 109(a) while theCourt’s reading of the Act severely dimin-ishes § 602(a)(1)’s role. See supra, at1378 – 1380. My position in no way tugsagainst the principle underlying § 109(a)—i.e., that certain conduct by the copyrightowner exhausts the owner’s § 106(3) dis-tribution right. The Court, in contrast,fails to give meaningful effect to Congress’manifest intent in § 602(a)(1) to grantcopyright owners the right to control theimportation of foreign-made copies of theirworks.

2Other statutory prescriptions provide

further protection against the absurd con-sequences imagined by the Court. Forexample, § 602(a)(3)(C) permits ‘‘an organ-ization operated for scholarly, educational,or religious purposes’’ to import, withoutthe copyright owner’s authorization, up tofive foreign-made copies of a non-audiovi-sual work—notably, a book—for ‘‘librarylending or archival purposes.’’ But cf.ante, at 1364 – 1365 (suggesting that af-firming the Second Circuit’s decision mightprevent libraries from lending foreign-made books).22

The Court also notes that amici repre-senting art museums fear that a ruling inWiley’s favor would prevent museumsfrom displaying works of art createdabroad. Ante, at 1365 (citing Brief forAssociation of Art Museum Directors etal.). These amici observe that a muse-um’s right to display works of art oftendepends on 17 U.S.C. § 109(c). See Brieffor Association of Art Museum Directorset al. 11–13.23 That provision addressesexhaustion of a copyright owner’s exclusiveright under § 106(5) to publicly display theowner’s work. Because § 109(c), like§ 109(a), applies only to copies ‘‘lawfullymade under this title,’’ amici contend thata ruling in Wiley’s favor would preventmuseums from invoking § 109(c) with re-spect to foreign-made works of art. Id., at11–13.24

material change in § 27 of the Copyright Actof 1947, 61 Stat. 660. As noted above, seesupra, at 1374, 17 U.S.C. § 109(a) sets out thecurrent codification of the first sale doctrine.

22. A group of amici representing libraries ex-presses the concern that lower courts mightinterpret § 602(a)(3)(C) as authorizing onlythe importing, but not the lending, of foreign-made copies of non-audiovisual works. SeeBrief for American Library Association et al.20. The United States maintains, and I agree,however, that § 602(a)(3)(C) ‘‘is fairly (andbest) read as implicitly authorizing lending, in

addition to importation, of all works otherthan audiovisual works.’’ Brief for UnitedStates as Amicus Curiae 30, n. 6.

23. Title 17 U.S.C. § 109(c) provides: ‘‘Not-withstanding the provisions of section 106(5),the owner of a particular copy lawfully madeunder this title, or any person authorized bysuch owner, is entitled, without the authorityof the copyright owner, to display that copypublicly, either directly or by the projection ofno more than one image at a time, to viewerspresent at the place where the copy is locat-ed.’’


Limiting § 109(c) to U.S.-made works,however, does not bar art museums fromlawfully displaying works made in othercountries. Museums can, of course, seekthe copyright owner’s permission to dis-play a work. Furthermore, the sale of awork of art to a U.S. museum may carrywith it an implied license to publicly dis-play the work. See 2 Patry § 5:131, at 5–280 (‘‘[C]ourts have noted the potentialavailability of an implied nonexclusive li-cens[e] when the circumstances TTT dem-onstrate that the parties intended that thework would be used for a specific pur-pose.’’). Displaying a work of art as partof a museum exhibition might also qualifyas a ‘‘fair use’’ under 17 U.S.C. § 107. Cf.Bouchat v. Baltimore Ravens Ltd. Part-nership, 619 F.3d 301, 313–316 (C.A.42010) (display of copyrighted logo in muse-um-like exhibition constituted ‘‘fair use’’).

The Court worries about the resale offoreign-made consumer goods ‘‘con-tain[ing] copyrightable software programsor packaging.’’ Ante, at 1365. For exam-ple, the Court observes that a car might beprogrammed with diverse forms of soft-ware, the copyrights to which might be

owned by individuals or entities other thanthe manufacturer of the car. Ibid. Must acar owner, the Court asks, obtain permis-sion from all of these various copyrightowners before reselling her car? Ibid.Although this question strays far from theone presented in this case and briefed bythe parties, principles of fair use and im-plied license (to the extent that expresslicenses do not exist) would likely permitthe car to be resold without the copyrightowners’ authorization.25

Most telling in this regard, no court, itappears, has been called upon to answerany of the Court’s ‘‘horribles’’ in an actualcase. Three decades have passed since afederal court first published an opinionreading § 109(a) as applicable exclusivelyto copies made in the United States. SeeColumbia Broadcasting System, Inc. v.Scorpio Music Distributors, Inc., 569F.Supp. 47, 49 (E.D.Pa.1983), summarilyaff’d, 738 F.2d 424 (C.A.3 1984) (table).Yet Kirtsaeng and his supporting amicicite not a single case in which the owner ofa consumer good authorized for sale in theUnited States has been sued for copyrightinfringement after reselling the item orgiving it away as a gift or to charity. The

24. The word ‘‘copy,’’ as it appears in§ 109(c), applies to the original of a work ofart because the Copyright Act defines theterm ‘‘copies’’ to ‘‘includ[e] the material ob-ject TTT in which the work is first fixed.’’§ 101.

25. Principles of fair use and implied licensemay also allow a U.S. tourist ‘‘who buys acopyrighted work of art, a poster, or TTT abumper sticker’’ abroad to publicly ‘‘display itin America without the copyright owner’s fur-ther authorization.’’ Ante, at 1362. (Thetourist could lawfully bring the work of art,poster, or bumper sticker into the UnitedStates under 17 U.S.C. § 602(a)(3)(B), whichprovides that § 602(a)(1)’s importation bandoes not apply to ‘‘importation TTT by anyperson arriving from outside the UnitedStates TTT with respect to copies TTT forming

part of such person’s personal baggage.’’).Furthermore, an individual clearly would notincur liability for infringement merely by dis-playing a foreign-made poster or other art-work in her home. See § 106(5) (grantingthe owners of copyrights in ‘‘literary, musical,dramatic, and choreographic works, panto-mimes, and pictorial, graphic, or sculpturalworks’’ the exclusive right ‘‘to display thecopyrighted work publicly ’’ (emphasis add-ed)). See also § 101 (a work is displayed‘‘publicly’’ if it is displayed ‘‘at a place opento the public or at any place where a substan-tial number of persons outside of a normalcircle of a family and its social acquaintancesis gathered’’ (emphasis added)). Cf. 2 Nim-mer § 8.14[C][1], at 8–192.2(1) (‘‘[A] perform-ance limited to members of the family andinvited guests is not a public performance.’’(footnote omitted)).


absence of such lawsuits is unsurprising.Routinely suing one’s customers is hardlya best business practice.26 Manufacturers,moreover, may be hesitant to do businesswith software programmers taken to suingconsumers. Manufacturers may also insistthat software programmers agree to con-tract terms barring such lawsuits.

The Court provides a different explana-tion for the absence of the untoward conse-quences predicted in its opinion—namely,that lower court decisions regarding thescope of § 109(a)’s first sale prescriptionhave not been uniform. Ante, at 1366.Uncertainty generated by these conflictingdecisions, the Court notes, may have de-terred some copyright owners from press-ing infringement claims. Ante, at 1366 –1367. But if, as the Court suggests, thereare a multitude of copyright ownerschamping at the bit to bring lawsuitsagainst libraries, art museums, and con-sumers in an effort to exercise perpetualcontrol over the downstream distributionand public display of foreign-made copies,might one not expect that at least a hand-ful of such lawsuits would have been filed

over the past 30 years? The absence ofsuch suits indicates that the ‘‘practicalproblems’’ hypothesized by the Court aregreatly exaggerated. Ante, at 1367.27

They surely do not warrant disregardingCongress’ intent, expressed in § 602(a)(1),to grant copyright owners the authority tobar the importation of foreign-made copiesof their works. Cf. Hartford Underwrit-ers Ins. Co. v. Union Planters Bank, N.A., 530 U.S. 1, 6, 120 S.Ct. 1942, 147L.Ed.2d 1 (2000) (‘‘[W]hen the statute’slanguage is plain, the sole function of thecourts—at least where the disposition re-quired by the text is not absurd—is toenforce it according to its terms.’’ (internalquotation marks omitted)).

VI

To recapitulate, the objective of statuto-ry interpretation is ‘‘to give effect to theintent of Congress.’’ American TruckingAssns., 310 U.S., at 542, 60 S.Ct. 1059.Here, two congressional aims are evident.First, in enacting § 602(a)(1), Congress in-tended to grant copyright owners permis-

26. Exerting extensive control over secondarymarkets may not always be in a manufactur-er’s best interest. Carmakers, for example,often trumpet the resale value of their vehi-cles. See, e.g., Nolan, UD grad leads Cadillacmarketing, Dayton Daily News, Apr. 2, 2009,p. A8 (‘‘Cadillac plays up its warranty cover-age and reliable resale value to prospectivecustomers.’’). If the transaction costs of re-selling vehicles were to rise, consumers’ per-ception of a new car’s value, and thus theprice they are willing to pay for such a car,might fall—an outcome hardly favorable toautomobile manufacturers.

27. It should not be overlooked that the abilityto prevent importation of foreign-made copiesencourages copyright owners such as Wiley tooffer copies of their works at reduced pricesto consumers in less developed countries whomight otherwise be unable to afford them.The Court’s holding, however, prevents copy-right owners from barring the importation ofsuch low-priced copies into the United States,

where they will compete with the higherpriced editions copyright owners make avail-able for sale in this country. To protect theirprofit margins in the U.S. market, copyrightowners may raise prices in less developedcountries or may withdraw from such mar-kets altogether. See Brief for United Statesas Amicus Curiae 26; Brief for Text and Aca-demic Authors Association as Amicus Curiae12; Brief for Association of American Pub-lishers as Amicus Curiae 37. See also Chiap-petta 357–358 (a rule of national exhaustion‘‘encourages entry and participation in devel-oping markets at lower, locally more afforda-ble prices by eliminating them as riskysources of cheaper parallel imports back intopremium markets’’). Such an outcomewould disserve consumers—and especiallystudents—in developing nations and wouldhardly advance the ‘‘American foreign policygoals’’ of supporting education and economicdevelopment in such countries. Quality KingBrief 25–26.

1391WOS v. E.M.A. EX REL. JOHNSONCite as 133 S.Ct. 1391 (2013)

sion to segment international markets bybarring the importation of foreign-madecopies into the United States. Second, ascodification of the first sale doctrine under-scores, Congress did not want the exclu-sive distribution right conferred in§ 106(3) to be boundless. Instead of har-monizing these objectives, the Court sub-ordinates the first entirely to the second.It is unsurprising that none of the threemajor treatises on U.S. copyright law em-brace the Court’s construction of § 109(a).See 2 Nimmer § 8.12[B][6][c], at 8–184.34to 8–184.35; 2 Goldstein § 7.6.1.2(a), at7:141; 4 Patry §§ 13:22, 13:44, 13:44.10.

Rather than adopting the very interna-tional-exhaustion rule the United Stateshas consistently resisted in international-trade negotiations, I would adhere to thenational-exhaustion framework set by theCopyright Act’s text and history. Underthat regime, codified in § 602(a)(1), Kirt-saeng’s unauthorized importation of theforeign-made textbooks involved in thiscase infringed Wiley’s copyrights. I wouldtherefore affirm the Second Circuit’s judg-ment.

,

Aldona WOS, Secretary, North CarolinaDepartment of Health and Human

Services, Petitioner

v.

E.M.A., a minor, by and through herguardian ad litem, Daniel H.

JOHNSON, et al.No. 12–98.

Argued Jan. 8, 2013.

Decided March 20, 2013.

Background: Guardian at litem for minorchild, who had been a recipient of Medicaid

benefits and who had received an awardfrom settlement of medical malpracticesuit, brought § 1983 action against NorthCarolina Department of Health and Hu-man Services, which had placed Medicaidlien on settlement proceeds, seeking de-claratory and injunctive relief for depriva-tion of child’s rights under federal Medic-aid anti-lien provision. The United StatesDistrict Court for the Western District ofNorth Carolina, Richard L. Voorhees, J.,722 F.Supp.2d 653, granted summaryjudgment in favor of State. Guardian ap-pealed. The United States Court of Ap-peals for the Fourth Circuit, Davis, CircuitJudge, 674 F.3d 290, vacated and remand-ed. Certiorari was granted.

Holding: The Supreme Court, JusticeKennedy, held that North Carolina statutegoverning the State’s reimbursement fromthe proceeds of tort damages recovered bya Medicaid beneficiary is preempted bythe federal Medicaid anti-lien provision, tothe extent that the North Carolina statutecan be interpreted as creating a conclusivepresumption that one-third of a Medicaidbeneficiary’s tort recovery represents com-pensation for medical expenses, abrogatingAndrews v. Haygood, 362 N.C. 599, 669S.E.2d 310.

Court of Appeals affirmed.

Justice Breyer filed a concurring opinion.

Chief Justice Roberts filed a dissentingopinion, in which Justice Scalia and JusticeThomas joined.

1. Health O497

The Medicaid statutes set both a floorand a ceiling on a State’s potential share ofa beneficiary’s tort recovery, by requiringan assignment to the State of the right torecover that portion of a settlement thatrepresents payments for medical care, but

kirtsaeng v. john wiley & sons, inc - thetmca.com · kirtsaeng v. john wiley & sons,...

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