Kirtsaeng v. John Wiley & Sons, Inc.

(Slip Opinion) OCTOBER TERM, 2012 1

Syllabus

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

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

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

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

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

SUPREME COURT OF THE UNITED STATES

Syllabus

KIRTSAENG, DBA BLUECHRISTINE99 v. JOHN WILEY

& SONS, INC.

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR

THE SECOND CIRCUIT

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

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

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

application of several limitations set out in §§107 through 122, in-

cluding the “first sale” doctrine, which provides that “the owner of a

particular copy or phonorecord lawfully made under this title . . . is

entitled, without the authority of the copyright owner, to sell or oth-

erwise dispose of the possession of that copy or phonorecord,” §109(a).

Importing a copy made abroad without the copyright owner’s permis-

sion is an infringement of §106(3). See §602(a)(1). In Quality King

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

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

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

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

United States and then sent abroad and sold.

Respondent, John Wiley & Sons, Inc., an academic textbook pub-

lisher, often assigns to its wholly owned foreign subsidiary (Wiley

Asia) rights to publish, print, and sell foreign editions of Wiley’s Eng-

lish language textbooks abroad. Wiley Asia’s books state that they

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

When petitioner Kirtsaeng moved from Thailand to the United States

to study mathematics, he asked friends and family to buy foreign edi-

tion English-language textbooks in Thai book shops, where they sold

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

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

profit.

Wiley filed suit, claiming that Kirtsaeng’s unauthorized importa-

tion and resale of its books was an infringement of Wiley’s §106(3)

2 KIRTSAENG v. JOHN WILEY & SONS, INC.

Syllabus

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

replied that because his books were “lawfully made” and acquired le-

gitimately, §109(a)’s “first sale” doctrine permitted importation and

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

that Kirtsaeng could not assert this defense because the doctrine

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

that Kirtsaeng had willfully infringed Wiley’s American copyrights

and assessed damages. The Second Circuit affirmed, concluding that

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

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

works manufactured abroad.

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

lawfully made abroad. Pp. 7–33.

(a) Wiley reads “lawfully made under this title” to impose a geo-

graphical limitation that prevents §109(a)’s doctrine from applying to

Wiley Asia’s books. Kirtsaeng, however, reads the phrase as impos-

ing the non-geographical limitation made “in accordance with” or “in

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

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

permission. Pp. 7–8.

(b) Section 109(a)’s language, its context, and the “first sale” doc-

trine’s common-law history favor Kirtsaeng’s reading. Pp. 8–24.

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

logically mean “in accordance with.” And a nongeographical inter-

pretation provides each word in the phrase “lawfully made under this

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

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

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

the U. S. Copyright Act). This simple reading promotes the tradi-

tional copyright objective of combatting piracy and makes word-by-

word linguistic sense.

In contrast, the geographical interpretation bristles with linguistic

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

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

argues that the Act “is applicable” only in the United States. Howev-

er, neither “under” nor any other word in “lawfully made under this

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

the word “applicable.” The fact that the Act does not instantly pro-

tect an American copyright holder from unauthorized piracy taking

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

abroad. Indeed, §602(a)(2) makes foreign-printed pirated copies sub-

ject to the Copyright Act. And §104 says that works “subject to pro-

tection” include unpublished works “without regard to the [author’s]

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

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

Syllabus

nearly 180 nations that have signed a copyright treaty with the

United States. Pp. 8–12.

(2) Both historical and contemporary statutory context indicate

that Congress did not have geography in mind when writing the pre-

sent version of §109(a). A comparison of the language in §109(a)’s

predecessor and the present provision supports this conclusion. The

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

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

version covers only owners of a “lawfully made” copy. This new lan-

guage, including the five words at issue, makes clear that a lessee of

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

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

nongeographical interpretation is also supported by other provisions

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

which limited importation of many copies printed outside the United

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

made in America and copies made abroad. But that “equal treat-

ment” principle is difficult to square with a geographical interpreta-

tion that would grant an American copyright holder permanent con-

trol over the American distribution chain in respect to copies printed

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

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

same meaning when they appear in different but related sections,

and it is unlikely that Congress would have intended the conse-

quences produced by a geographical interpretation. Pp. 12–16.

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

statutory interpretation that “when a statute covers an issue previ-

ously governed by the common law,” it is presumed that “Congress

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

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

which has an impeccable historic pedigree, makes no geographical

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

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

doctrine, or in §109(a)’s predecessor provision, which Congress enact-

ed a year later. Pp. 17–19.

(4) Library associations, used-book dealers, technology compa-

nies, consumer-goods retailers, and museums point to various ways

in which a geographical interpretation would fail to further basic

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

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

geographical interpretation of the first-sale doctrine would likely re-

quire libraries to obtain permission before circulating the many books

in their collections that were printed overseas. Wiley counters that

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

4 KIRTSAENG v. JOHN WILEY & SONS, INC.

Syllabus

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

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

was the first Court of Appeals to adopt a purely geographical inter-

pretation. Reliance on the “first sale” doctrine is also deeply embed-

ded in the practices of booksellers, libraries, museums, and retailers,

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

proved limited so far may simply reflect the reluctance of copyright

holders to assert geographically based resale rights. Thus, the prac-

tical problems described by petitioner and his amici are too serious,

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

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

to America. Pp. 19–24.

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

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

33.

654 F. 3d 210, reversed and remanded.

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

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

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

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

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

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

Opinion of the Court

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

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

notify the Reporter of Decisions, Supreme Court of the United States, Wash­

ington, D. C. 20543, of any typographical or other formal errors, in order

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

SUPREME COURT OF THE UNITED STATES

_________________

No. 11–697

_________________

SUPAP KIRTSAENG, DBA BLUECHRISTINE99,

PETITIONER v. JOHN WILEY & SONS, INC.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE SECOND CIRCUIT

[March 19, 2013]

JUSTICE BREYER delivered the opinion of the Court.

Section 106 of the Copyright Act grants “the owner of

copyright under this title” certain “exclusive rights,”

including the right “to distribute copies . . . of the copy­

righted work to the public by sale or other transfer of

ownership.” 17 U. S. C. §106(3). These rights are quali­

fied, however, by the application of various limitations set

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

122. Those sections, typically entitled “Limitations on

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

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

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

“first sale” doctrine (§109).

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

follows:

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

section that grants the owner exclusive distribution

rights], the owner of a particular copy or phonorecord

lawfully made under this title . . . is entitled, without

the authority of the copyright owner, to sell or other­

wise dispose of the possession of that copy or

2 KIRTSAENG v. JOHN WILEY & SONS, INC.

Opinion of the Court

phonorecord.” (Emphasis added.)

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

say, the copyrighted novel Herzog without the copyright

owner’s permission, §109(a) adds that, once a copy of Her-

zog has been lawfully sold (or its ownership otherwise

lawfully transferred), the buyer of that copy and subse­

quent owners are free to dispose of it as they wish. In

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

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

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

and then initially sold with the copyright owner’s permis­

sion? Does the “first sale” doctrine still apply? Is the

buyer, like the buyer of a domestically manufactured copy,

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

it as he or she wishes?

To put the matter technically, an “importation” provi­

sion, §602(a)(1), says that

“[i]mportation into the United States, without the au­

thority of the owner of copyright under this title, of

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

the United States is an infringement of the exclusive

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

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

added).

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

without permission violates the owner’s exclusive distri-

bution right. But in doing so, §602(a)(1) refers explicitly to

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

said, §106 is by its terms “[s]ubject to” the various doc­

trines and principles contained in §§107 through 122, in-

cluding §109(a)’s “first sale” limitation. Do those same

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

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

prohibits importing a copy?

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

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

Opinion of the Court

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

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

right incorporates the later subsections’ limitations, in­

cluding, in particular, the “first sale” doctrine of §109.

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

who buys a copy abroad can freely import that copy into

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

bought the copy in the United States.

But Quality King considered an instance in which the

copy, though purchased abroad, was initially manufac­

tured in the United States (and then sent abroad and

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

fact. The copies at issue here were manufactured abroad.

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

sale” doctrine applies to “a particular copy or phonorecord

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

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

make a critical legal difference.

Putting section numbers to the side, we ask whether

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

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

manufactured abroad. Can that buyer bring that copy

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

obtaining permission to do so from the copyright owner?

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

bookstore, a book printed abroad subsequently resell it

without the copyright owner’s permission?

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

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

copyrighted work lawfully made abroad.

I

A

Respondent, John Wiley & Sons, Inc., publishes aca­

demic textbooks. Wiley obtains from its authors various

foreign and domestic copyright assignments, licenses and

4 KIRTSAENG v. JOHN WILEY & SONS, INC.

Opinion of the Court

permissions—to the point that we can, for present pur­

poses, refer to Wiley as the relevant American copyright

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

often assigns to its wholly owned foreign subsidiary, John

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

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

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

edition will likely contain language making clear that the

copy is to be sold only in a particular country or geograph­

ical region outside the United States. 654 F. 3d, at 213.

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

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

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

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

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

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

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

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

and may be not exported out of these territories. Ex­

portation from or importation of this book to another

region without the Publisher’s authorization is illegal

and is a violation of the Publisher’s rights. The Pub­

lisher may take legal action to enforce its rights. . . .

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

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

Both the foreign and the American copies say:

“No part of this publication may be reproduced, stored

in a retrieval system, or transmitted in any form or

by any means . . . except as permitted under Sections

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

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

vi (American ed.).

The upshot is that there are two essentially equivalent

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

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

Opinion of the Court

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

an American version printed and sold in the United

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

abroad. And Wiley makes certain that copies of the second

version state that they are not to be taken (without per­

mission) into the United States. Ibid.

Petitioner, Supap Kirtsaeng, a citizen of Thailand,

moved to the United States in 1997 to study mathemat­

ics at Cornell University. Ibid. He paid for his educa­

tion with the help of a Thai Government scholarship which

required him to teach in Thailand for 10 years on his

return. Brief for Petitioner 7. Kirtsaeng successfully

completed his undergraduate courses at Cornell, success­

fully completed a Ph. D. program in mathematics at the

University of Southern California, and then, as promised,

returned to Thailand to teach. Ibid. While he was study­

ing in the United States, Kirtsaeng asked his friends and

family in Thailand to buy copies of foreign edition English­

language textbooks at Thai book shops, where they sold at

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

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

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

Cert. 48a–49a.

B

In 2008 Wiley brought this federal lawsuit against

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

Wiley claimed that Kirtsaeng’s unauthorized importation

of its books and his later resale of those books amounted

to an infringement of Wiley’s §106(3) exclusive right to dis­

tribute as well as §602’s related import prohibition. 17

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

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

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

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

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

6 KIRTSAENG v. JOHN WILEY & SONS, INC.

Opinion of the Court

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

sale” doctrine permitted him to resell or otherwise dispose

of the books without the copyright owner’s further permis­

sion. Id., at 2–3.

The District Court held that Kirtsaeng could not assert

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

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

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

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

had willfully infringed Wiley’s American copyrights by

selling and importing without authorization copies of eight

of Wiley’s copyrighted titles. And it assessed statutory

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

215.

On appeal, a split panel of the Second Circuit agreed

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

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

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

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

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

apply to copies of American copyrighted works manufac­

tured abroad. Id., at 221. A dissenting judge thought that

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

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

particular copy was manufactured lawfully under” Amer-

ica’s copyright statute, and that “the lawfulness of the

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

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

We granted Kirtsaeng’s petition for certiorari to con-

sider this question in light of different views among the

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

doctrine does not apply to copies manufactured outside the

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

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

applies to copies manufactured outside the United States

only if an authorized first sale occurs within the United

Cite as: 568 U. S. ____ (2013) 7

Opinion of the Court

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

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

(PTY) Ltd., 847 F. 2d 1093, 1098, n. 1 (CA3 1988) (limita­

tion of the first sale doctrine to copies made within the

United States “does not fit comfortably within the scheme

of the Copyright Act”).

II

We must decide whether the words “lawfully made

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

doctrine geographically. The Second Circuit, the Ninth

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

read those words as imposing a form of geographical limi­

tation. The Second Circuit held that they limit the “first

sale” doctrine to particular copies “made in territories in

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

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

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

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

doctrine “to copies made in conformance with the [United

States] Copyright Act where the Copyright Act is appli­

cable,” which (Wiley says) means it does not apply to copies

made “outside the United States” and at least not to “for­

eign production of a copy for distribution exclusively

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

Solicitor General says that those five words limit the “first

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

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

Solicitor General says) are copies “made in the United

States.” Brief for United States as Amicus Curiae 5

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

And the Ninth Circuit has held that those words limit the

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

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

outside the United States but initially sold in the United

States with the copyright owner’s permission. Denbicare

8 KIRTSAENG v. JOHN WILEY & SONS, INC.

Opinion of the Court

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

(1996).

Under any of these geographical interpretations,

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

Asia books at issue here. And, despite an American copy­

right owner’s permission to make copies abroad, one who

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

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

sale—could not resell (or otherwise dispose of) that partic­

ular copy without further permission.

Kirtsaeng, however, reads the words “lawfully made

under this title” as imposing a non-geographical limita­

tion. He says that they mean made “in accordance with”

or “in compliance with” the Copyright Act. Brief for Peti­

tioner 26. In that case, §109(a)’s “first sale” doctrine

would apply to copyrighted works as long as their manu­

facture met the requirements of American copyright law.

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

copies are manufactured abroad with the permission of the

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

to authorize).

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

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

together, favor a non-geographical interpretation. We also

doubt that Congress would have intended to create the

practical copyright-related harms with which a geograph­

ical interpretation would threaten ordinary scholarly,

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

D, infra. We consequently conclude that Kirtsaeng’s

nongeographical reading is the better reading of the Act.

A

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

nongeographical interpretation, namely, that “lawfully

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

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

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

Opinion of the Court

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

can mean “[i]n accordance with.” 18 Oxford English Dic­

tionary 950 (2d ed. 1989). See also Black’s Law Dictionary

1525 (6th ed. 1990) (“according to”). And a nongeograph­

ical interpretation provides each word of the five-word

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

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

those copies that were made lawfully from those that were

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

the standard of “lawful[ness].” Thus, the nongeograph-

ical reading is simple, it promotes a traditional copyright

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

linguistic sense.

The geographical interpretation, however, bristles with

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

if any, linguistic work to do. (How could a book be unlaw­

fully “made under this title”?) It imports geography into a

statutory provision that says nothing explicitly about it.

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

To read the clause geographically, Wiley, like the Sec­

ond Circuit and the Solicitor General, must first empha­

size the word “under.” Indeed, Wiley reads “under this

title” to mean “in conformance with the Copyright Act

where the Copyright Act is applicable.” Brief for Respond­

ent 15. Wiley must then take a second step, arguing that

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

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

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

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

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

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

something “governed or regulated by another”).

One difficulty is that neither “under” nor any other

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

English Dictionary, supra, at 947–952 (definition of “un­

der”). It might mean “subject to,” see post, at 6, but as this

10 KIRTSAENG v. JOHN WILEY & SONS, INC.

Opinion of the Court

Court has repeatedly acknowledged, the word evades a

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

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

INS, 502 U. S. 129, 135 (1991) (“under” has “many dic­

tionary definitions” and “must draw its meaning from its

context”).

A far more serious difficulty arises out of the uncer­

tainty and complexity surrounding the second step’s effort

to read the necessary geographical limitation into the word

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

Copyright Act “applicable”? The Act does not instantly

protect an American copyright holder from unauthorized

piracy taking place abroad. But that fact does not mean

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

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

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

applies to all Nepalese rhododendrons. And, similarly,

one can say that the American Copyright Act is applicable

to all pirated copies, including those printed overseas.

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

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

ject to” the Act. §602(a)(2) (2006 ed., Supp. V) (refer­

ring to importation of copies “the making of which either

constituted an infringement of copyright, or which would

have constituted an infringement of copyright if this title

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

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

“subject to”).

The appropriateness of this linguistic usage is under­

scored by the fact that §104 of the Act itself says that

works “subject to protection under this title” include un­

published works “without regard to the nationality or

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

one of the nearly 180 nations that have signed a copyright

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

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

Cite as: 568 U. S. ____ (2013) 11

Opinion of the Court

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

International Copyright Relations of the United States

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

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

Dublin desk drawer as well as to an original recording of

a ballet performance first made in Japan and now on

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

Nimmer, Copyright §17.02, pp. 17–18, 17–19 (2012) (herein­

after Nimmer on Copyright) (noting that the principle that

“copyright laws do not have any extraterritorial operation”

“requires some qualification”).

The Ninth Circuit’s geographical interpretation pro-

duces still greater linguistic difficulty. As we said, that Cir­

cuit interprets the “first sale” doctrine to cover both (1)

copies manufactured in the United States and (2) copies

manufactured abroad but first sold in the United States

with the American copyright owner’s permission. Den­

bicare U. S. A., 84 F. 3d, at 1149–1150. See also Brief

for Respondent 16 (suggesting that the clause at least

excludes “the foreign production of a copy for distribution

exclusively abroad”); id., at 51 (the Court need “not de-

cide whether the copyright owner would be able to restrict

further distribution” in the case of “a downstream domes­

tic purchaser of authorized imports”); Brief for Petitioner

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

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

unrelated foreign copyright holders” (emphasis deleted)).

We can understand why the Ninth Circuit may have

thought it necessary to add the second part of its defini­

tion. As we shall later describe, see Part II–D, infra,

without some such qualification a copyright holder could

prevent a buyer from domestically reselling or even giving

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

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

in China, even if the copyright holder has granted permis­

sion for the foreign manufacture, importation, and an initial

12 KIRTSAENG v. JOHN WILEY & SONS, INC.

Opinion of the Court

domestic sale of the copy. A publisher such as Wiley

would be free to print its books abroad, allow their im-

portation and sale within the United States, but prohibit

students from later selling their used texts at a campus

bookstore. We see no way, however, to reconcile this half­

geographical/half-nongeographical interpretation with the

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

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

words either do cover copies lawfully made abroad or they

do not.

In sum, we believe that geographical interpretations

create more linguistic problems than they resolve. And

considerations of simplicity and coherence tip the purely

linguistic balance in Kirtsaeng’s, nongeographical, favor.

B

Both historical and contemporary statutory context in­

dicate that Congress, when writing the present version of

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

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

language of its immediate predecessor. That predecessor

said:

“[N]othing in this Act shall be deemed to forbid, pre­

vent, or restrict the transfer of any copy of a copy­

righted work the possession of which has been lawfully

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

(emphasis added).

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

predecessor says nothing about geography (and Wiley does

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

changing its language implicitly introduced a geograph­

ical limitation that previously was lacking. See also Part

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

principle).

A comparison of language indicates that it did not. The

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

Opinion of the Court

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

transfer of any copy the possession of which has been

lawfully obtained.” The present version says that “the

owner of a particular copy or phonorecord lawfully made

under this title is entitled to sell or otherwise dispose of

the possession of that copy or phonorecord.” What does

this change in language accomplish?

The language of the former version referred to those

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

“lawfully obtained” a copy. The present version covers

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

Whom does the change leave out? Who might have law-

fully obtained a copy of a copyrighted work but not owned

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

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

movie distributors or filmmakers. See S. Donahue,

American Film Distribution 134, 177 (1987) (describing

producer-distributer and distributer-exhibitor agreements);

Note, The Relationship Between Motion Picture Distribu­

tion and Exhibition: An Analysis of the Effects of Anti-

Blind Bidding Legislation, 9 Comm/Ent. L. J. 131, 135

(1986). Because the theater owners had “lawfully ob­

tained” their copies, the earlier version could be read as

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

them “first sale” protection. Because the theater owners

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

language makes clear that they (like bailees and other

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

(Those who find legislative history useful will find confir­

mation in, e.g., House Committee on the Judiciary, Copy­

right Law Revision, Supplementary Report of the Register

of Copyrights on the General Revision of the U. S. Copy­

right Law: 1965 Revision Bill, 89th Cong., 1st Sess., pt.

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

Revision) (“[W]here a person has rented a print of a mo­

tion picture from the copyright owner, he would have no

14 KIRTSAENG v. JOHN WILEY & SONS, INC.

Opinion of the Court

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

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

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

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

predecessor statute’s leasing problem)).

This objective perfectly well explains the new language

of the present version, including the five words here at

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

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

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

course, that the copy was “lawfully made” and not pi­

rated. The new language also takes into account that a

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

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

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

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

who find legislative history useful, the relevant legislative

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

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

phonorecord would be an infringement, but the disposition

of a phonorecord legally made under the compulsory li­

censing provisions of section 115 would not”).

Other provisions of the present statute also support

a nongeographical interpretation. For one thing, the stat­

ute phases out the “manufacturing clause,” a clause that

appeared in earlier statutes and had limited importation

of many copies (of copyrighted works) printed outside the

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

. . . the importation into or public distribution in the

United States of copies of a work consisting preponderantly

of nondramatic literary material . . . is prohibited unless

the portions consisting of such material have been manufac-

tured in the United States or Canada”). The phasing out

of this clause sought to equalize treatment of copies manu­

factured in America and copies manufactured abroad. See

H. R. Rep. No. 94–1476, at 165–166.

Cite as: 568 U. S. ____ (2013) 15

Opinion of the Court

The “equal treatment” principle, however, is difficult

to square with a geographical interpretation of the “first

sale” clause that would grant the holder of an American

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

permanent control over the American distribution chain

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

copies printed abroad but not in respect to copies printed

in America. And it is particularly difficult to believe that

Congress would have sought this unequal treatment while

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

manufacturing phase-out), seeking the opposite kind of

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

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

regime that, prior to 1891, entirely excluded foreign works

from U. S. copyright protection to a regime that now “en­

sure[s] that most works, whether foreign or domestic,

would be governed by the same legal regime” (emphasis

added)).

Finally, we normally presume that the words “lawfully

made under this title” carry the same meaning when they

appear in different but related sections. Department of

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

342 (1994). But doing so here produces surprising conse­

quences. Consider:

(1) Section 109(c) says that, despite the copyright own­

er’s exclusive right “to display” a copyrighted work

(provided in §106(5)), the owner of a particular copy “law-

fully made under this title” may publicly display it with­

out further authorization. To interpret these words

geographically would mean that one who buys a copy­

righted work of art, a poster, or even a bumper sticker,

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

it in America without the copyright owner’s further

authorization.

16 KIRTSAENG v. JOHN WILEY & SONS, INC.

Opinion of the Court

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

of a particular copy of a copyrighted video arcade game

“lawfully made under this title” may “publicly perform

or display that game in coin-operated equipment” with­

out the authorization of the copyright owner. To inter­

pret these words geographically means that an arcade

owner could not (“without the authority of the copyright

owner”) perform or display arcade games (whether new

or used) originally made in Japan. Cf. Red Baron-

Franklin Park, Inc. v. Taito Corp., 883 F. 2d 275 (CA4

1989).

(3) Section 110(1) says that a teacher, without the copy­

right owner’s authorization, is allowed to perform or

display a copyrighted work (say, an audiovisual work)

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

the teacher knowingly used “a copy that was not law-

fully made under this title.” To interpret these words

geographically would mean that the teacher could not

(without further authorization) use a copy of a film dur­

ing class if the copy was lawfully made in Canada, Mex­

ico, Europe, Africa, or Asia.

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

basic exclusive rights to an “owner of a copyright under

this title.” The last three words cannot support a geo­

graphic interpretation.

Wiley basically accepts the first three readings, but ar-

gues that Congress intended the restrictive consequences.

And it argues that context simply requires that the words

of the fourth example receive a different interpretation.

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

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

would have intended these, and other related consequences.

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

17

Opinion of the Court

C

A relevant canon of statutory interpretation favors a

nongeographical reading. “[W]hen a statute covers an is-

sue previously governed by the common law,” we must pre-

sume that “Congress intended to retain the substance of

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

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

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

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

with a presumption favoring the retention of long­

established and familiar principles, except when a statu-

tory purpose to the contrary is evident”).

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

an impeccable historic pedigree. In the early 17th century

Lord Coke explained the common law’s refusal to permit

restraints on the alienation of chattels. Referring to Lit­

tleton, who wrote in the 15th century, Gray, Two Contri­

butions to Coke Studies, 72 U. Chi. L. Rev. 1127, 1135

(2005), Lord Coke wrote:

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

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

therein upon condition that the Donee or Vendee shall

not alien[ate] the same, the [condition] is voi[d], be­

cause his whole interest . . . is out of him, so as he

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

Trade and Traffi[c], and bargaining and contracting

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

our Author that it should ouster him of all power

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

England §360, p. 223 (1628).

A law that permits a copyright holder to control the

resale or other disposition of a chattel once sold is simi-

larly “against Trade and Traffi[c], and bargaining and con-

tracting.” Ibid.

With these last few words, Coke emphasizes the im­

18 KIRTSAENG v. JOHN WILEY & SONS, INC.

Opinion of the Court

portance of leaving buyers of goods free to compete with

each other when reselling or otherwise disposing of those

goods. American law too has generally thought that com­

petition, including freedom to resell, can work to the ad­

vantage of the consumer. See, e.g., Leegin Creative Leather

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

(restraints with “manifestly anticompetitive effects” are

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

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

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

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

consumer welfare by encouraging firms to behave

competitively”).

The “first sale” doctrine also frees courts from the ad­

ministrative burden of trying to enforce restrictions upon

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

selective enforcement inherent in any such effort. Thus, it

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

doctrine has played an important role in American copy­

right law. See Bobbs-Merrill Co. v. Straus, 210 U. S. 339

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

Copyright Law Revision, Further Discussions and Com­

ments on Preliminary Draft for Revised U. S. Copyright

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

1964) (Irwin Karp of Authors’ League of America express­

ing concern for “the very basic concept of copyright law

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

resale”).

The common-law doctrine makes no geographical dis­

tinctions; nor can we find any in Bobbs-Merrill (where

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

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

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

acknowledges, “a straightforward application of Bobbs-

Merrill” would not preclude the “first sale” defense from

applying to authorized copies made overseas. Brief for

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

Opinion of the Court

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

purpose, or history that would rebut a “straightforward

application” of that doctrine here.

The dissent argues that another principle of statutory

interpretation works against our reading, and points out

that elsewhere in the statute Congress used different

words to express something like the non-geographical

reading we adopt. Post, at 8–9 (quoting §602(a)(2) (prohib­

iting the importation of copies “the making of which either

constituted an infringement of copyright, or which would

have constituted an infringement of copyright if this title

had been applicable” (emphasis deleted))). Hence, Con­

gress, the dissent believes, must have meant §109(a)’s

different language to mean something different (such as

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

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

that forbids interpreting different words used in different

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

Regardless, were there such a canon, the dissent’s inter­

pretation of §109(a) would also violate it. That is because

Congress elsewhere in the 1976 Act included the words

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

2588, which express just about the same geographical

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

language.

D

Associations of libraries, used-book dealers, technology

companies, consumer-goods retailers, and museums point

to various ways in which a geographical interpretation

would fail to further basic constitutional copyright objec­

tives, in particular “promot[ing] the Progress of Science

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

The American Library Association tells us that library

collections contain at least 200 million books published

abroad (presumably, many were first published in one of

20 KIRTSAENG v. JOHN WILEY & SONS, INC.

Opinion of the Court

the nearly 180 copyright-treaty nations and enjoy Ameri­

can copyright protection under 17 U. S. C. §104, see supra,

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

States but printed abroad because of lower costs; and

that a geographical interpretation will likely require the li-

braries to obtain permission (or at least create significant

uncertainty) before circulating or otherwise distributing

these books. Brief for American Library Association et al.

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

limitations of potential defenses, including the fair use

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

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

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

moved to foreign nations”).

How, the American Library Association asks, are the

libraries to obtain permission to distribute these millions

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

a foreign book, perhaps written decades ago? They may

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

American Library Association 15 (many books lack indica­

tion of place of manufacture; “no practical way to learn

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

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

and negotiating may be high indeed. Are the libraries to

stop circulating or distributing or displaying the millions

of books in their collections that were printed abroad?

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

Benjamin Franklin and Thomas Jefferson built commer­

cial and personal libraries of foreign books, American

readers have bought used books published and printed

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

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

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

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

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

But under a geographical interpretation a contemporary

Cite as: 568 U. S. ____ (2013) 21

Opinion of the Court

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

dozen copies of a foreign book for American friends might

find that she had violated the copyright law. The used­

book dealers cannot easily predict what the foreign copy­

right holder may think about a reader’s effort to sell a

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

interpretation will injure a large portion of the used-book

business.

Technology companies tell us that “automobiles, micro­

waves, calculators, mobile phones, tablets, and personal

computers” contain copyrightable software programs or

packaging. Brief for Public Knowledge et al. as Amici

Curiae 10. See also Brief for Association of Service and

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

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

American copyright holder’s permission and then sold

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

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

Curiae 4. A geographical interpretation would prevent the

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

of each copyright on each piece of copyrighted automobile

software. Yet there is no reason to believe that foreign

auto manufacturers regularly obtain this kind of permis­

sion from their software component suppliers, and Wiley

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

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

owner could not sell his or her used car.

Retailers tell us that over $2.3 trillion worth of for-

eign goods were imported in 2011. Brief for Retail Litiga­

tion Center 8. American retailers buy many of these goods

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

items bear, carry, or contain copyrighted “packaging,

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

use of] everyday packaged goods from floor cleaners and

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

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

22 KIRTSAENG v. JOHN WILEY & SONS, INC.

Opinion of the Court

traditional copyrighted works, “such as books, recorded

music, motion pictures, and magazines” likely amount to

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

game industry is $16 billion). A geographical interpreta­

tion would subject many, if not all, of them to the disrup­

tive impact of the threat of infringement suits. Id., at 12.

Art museum directors ask us to consider their efforts to

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

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

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

“subject to” American copyright protection). A geograph­

ical interpretation, they say, would require the museums

to obtain permission from the copyright owners before

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

copyright owner has already sold or donated the work to

a foreign museum. Brief for Association of Art Museum

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

museums to do, they ask, if the artist retained the copy­

right, if the artist cannot be found, or if a group of heirs is

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

These examples, and others previously mentioned, help

explain why Lord Coke considered the “first sale” doctrine

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

and contracting,” and they help explain why American

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

17–18.

Neither Wiley nor any of its many amici deny that a

geographical interpretation could bring about these “hor­

ribles”—at least in principle. Rather, Wiley essentially

says that the list is artificially invented. Brief for Re­

spondent 51–52. It points out that a federal court first

adopted a geographical interpretation more than 30 years

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

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

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

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

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

Opinion of the Court

lems and threats are purely theoretical; they are unlikely

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

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

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

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

a purely geographical interpretation. The Third Circuit

has favored a nongeographical interpretation. Sebastian

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

modified geographical interpretation with a nongeograph­

ical (but textually unsustainable) corollary designed to

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

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

adopt, and have cast doubt upon, the validity of the geo­

graphical interpretation. Pearson Educ., Inc. v. Liu, 656

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

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

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

1989).

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

is deeply embedded in the practices of those, such as book­

sellers, libraries, museums, and retailers, who have long

relied upon its protection. Museums, for example, are

not in the habit of asking their foreign counterparts to

check with the heirs of copyright owners before sending,

e.g., a Picasso on tour. Brief for Association of Art Mu­

seum Directors 11–12. That inertia means a dramatic

change is likely necessary before these institutions, in­

structed by their counsel, would begin to engage in the

complex permission-verifying process that a geographical

interpretation would demand. And this Court’s adoption

of the geographical interpretation could provide that

dramatic change. These intolerable consequences (along

with the absurd result that the copyright owner can ex-

ercise downstream control even when it authorized the

import or first sale) have understandably led the Ninth

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

24 KIRTSAENG v. JOHN WILEY & SONS, INC.

Opinion of the Court

adopt textual readings of the statute that attempt to

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

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

they require too many unprecedented jumps over linguis­

tic and other hurdles that in our view are insurmountable.

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

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

§109(a)”).

Finally, the fact that harm has proved limited so far

may simply reflect the reluctance of copyright holders so

far to assert geographically based resale rights. They may

decide differently if the law is clarified in their favor.

Regardless, a copyright law that can work in practice only

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

would create uncertainty, would bring about selective

enforcement, and, if widely unenforced, would breed disre­

spect for copyright law itself.

Thus, we believe that the practical problems that peti­

tioner and his amici have described are too serious, too

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

them as insignificant—particularly in light of the ever­

growing importance of foreign trade to America. See

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

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

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

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

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

The upshot is that copyright-related consequences along

with language, context, and interpretive canons argue

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

III

Wiley and the dissent make several additional impor­

tant arguments in favor of the geographical interpretation.

First, they say that our Quality King decision strongly

supports its geographical interpretation. In that case

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

Opinion of the Court

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

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

permission) of a copyrighted item (labels affixed to hair

care products) where an American copyright owner au­

thorized the first sale and export of hair care products

with copyrighted labels made in the United States, and

where a buyer sought to import them back into the United

States without the copyright owner’s permission. 523

U. S., at 138–139.

We held that the importation provision did not prohibit

sending the products back into the United States (without

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

“Importation into the United States, without the au­

thority of the owner of copyright under this title, of

copies or phonorecords of a work that have been

acquired outside the United States is an infringement

of the exclusive right to distribute copies or phono­

records under section 106.” 17 U. S. C. §602(a)(1)

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

§602(a) (1994 ed.).

We pointed out that this section makes importation an

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

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

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

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

once been sold. And we held that consequently, importa­

tion of the copyrighted labels does not violate §602(a)(1).

523 U. S., at 145.

In reaching this conclusion we endorsed Bobbs-Merrill

and its statement that the copyright laws were not “in­

tended to create a right which would permit the holder of

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

upon the subsequent alienation of the subject-matter of

copyright after the owner had parted with the title to one

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

26 KIRTSAENG v. JOHN WILEY & SONS, INC.

Opinion of the Court

349–350.

We also explained why we rejected the claim that our

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

advancing that claim had pointed out that the 1976 Copy­

right Act amendments retained a prior anti-piracy provi­

sion, prohibiting the importation of pirated copies. Qual­

ity King, supra, at 146. Thus, they said, §602(a)(1) must

prohibit the importation of lawfully made copies, for to

allow the importation of those lawfully made copies after a

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

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

superfluous, without any real work to do.

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

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

forbid importing (without permission, and subject to the

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

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

licensee of an American publisher prints copies of a book

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

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

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

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

goods to the United States; (3) “a book publisher trans­

ports copies to a wholesaler” and the wholesaler (not yet

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

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

a foreign film distributor, having leased films for distri­

bution, or any other licensee, consignee, or bailee sought to

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

Copyright §8.12[B][1][a], at 8–159 (“Section 109(a) pro­

vides that the distribution right may be exercised solely

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

not to prevent or restrict the resale or other further trans­

fer of possession of such copies”). These examples show

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

significance than the dissent believes appropriate, but the

Cite as: 568 U. S. ____ (2013) 27

Opinion of the Court

dissent also adopts a construction of §106(3) that “signifi­

cantly curtails” §109(a)’s effect, post, at 26, and so limits

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

degree.

In Quality King we rejected the “superfluous” argument

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

where an author gives exclusive American distribution

rights to an American publisher and exclusive British

distribution rights to a British publisher, “presumably

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

States edition would be ‘lawfully made under this title’

within the meaning of §109(a).” 523 U. S., at 148 (empha­

sis added). Wiley now argues that this phrase in the

Quality King opinion means that books published abroad

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

under this title” and that we have consequently already

given those words the geographical interpretation that it

favors.

We cannot, however, give the Quality King statement

the legal weight for which Wiley argues. The language

“lawfully made under this title” was not at issue in Qual­

ity King; the point before us now was not then fully argued;

we did not canvas the considerations we have here set

forth; we there said nothing to suggest that the example

assumes a “first sale”; and we there hedged our state-

ment with the word “presumably.” Most importantly, the

statement is pure dictum. It is dictum contained in a

rebuttal to a counterargument. And it is unnecessary

dictum even in that respect. Is the Court having once

written dicta calling a tomato a vegetable bound to deny

that it is a fruit forever after?

To the contrary, we have written that we are not neces­

sarily bound by dicta should more complete argument

demonstrate that the dicta is not correct. Central Va.

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

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

28 KIRTSAENG v. JOHN WILEY & SONS, INC.

Opinion of the Court

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

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

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

may be followed if sufficiently persuasive but which are

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

King statement played in our Quality King decision, we

believe the view of stare decisis set forth in these opinions

applies to the matter now before us.

Second, Wiley and the dissent argue (to those who con­

sider legislative history) that the Act’s legislative history

supports their interpretation. But the historical events to

which it points took place more than a decade before the

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

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

film industries, meeting with the Register of Copyrights to

discuss copyright revision, complained about the difficulty

of dividing international markets. Copyright Law Revi­

sion Discussion and Comments on Report of the Register

of Copyrights on the General Revision of the U. S. Copy­

right Law, 88th Cong., 1st Sess., pt. 2, p. 212 (Comm.

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

their “way into this country”); id., at 213 (works “pub­

li[shed] in a country where there is no copyright protection

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

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

respect to films).

The then-Register of Copyrights, Abraham Kaminstein,

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

Copyright Office released a draft provision that it said

“deals with the matter of the importation for distribution

in the United States of foreign copies that were made

under proper authority but that, if sold in the United

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

copyright owner who holds the exclusive right to sell

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

version, without reference to §106, simply forbids unau­

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

Opinion of the Court

thorized imports. It said:

“Importation into the United States of copies or rec­

ords of a work for the purpose of distribution to the

public shall, if such articles are imported without the

authority of the owner of the exclusive right to distrib-

ute copies or records under this title, constitute an

infringement of copyright actionable under section 35

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

U. S. Copyright Law and Discussions and Comments,

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

1964).

In discussing the draft, some of those present expressed

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

example, Irwin Karp, representing the Authors League

of America asked, “If a German jobber lawfully buys cop-

ies from a German publisher, are we not running into the

problem of restricting his transfer of his lawfully obtained

copies?” Id., pt. 4, at 211. The Copyright Office repre­

sentative replied, “This could vary from one situation to

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

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

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

transaction that exhausts the right to control disposition.”

Ibid. (emphasis added).

The Office later withdrew the draft, replacing it with a

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

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

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

a copy (without permission) “would violate the exclusive

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

owner had authorized the making of copies in a foreign

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

150.

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

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

30 KIRTSAENG v. JOHN WILEY & SONS, INC.

Opinion of the Court

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

nor its accompanying 1960’s draft answers the question

before us here. Cf. Quality King, 523 U. S., at 145 (with­

out those five words, the import clause, via its reference to

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

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

than dissecting the remarks of industry representatives

concerning §602 at congressional meetings held 10 years

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

would give greater weight to the congressional report

accompanying §109(a), written a decade later when Con­

gress passed the new law. That report says:

“Section 109(a) restates and confirms the principle

that, where the copyright owner has transferred own­

ership of a particular copy or phonorecord of a work,

the person to whom the copy or phonorecord is trans­

ferred is entitled to dispose of it by sale, rental, or any

other means. Under this principle, which has been

established by the court decisions and . . . the present

law, the copyright owner’s exclusive right of public

distribution would have no effect upon anyone who

owns ‘a particular copy or phonorecord lawfully made

under this title’ and who wishes to transfer it to

someone else or to destroy it.

. . . . .

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

or phonorecord must have been ‘lawfully made under

this title,’ though not necessarily with the copyright

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

illegally ‘pirated’ phonorecord would be an infringe­

ment but the disposition of a phonorecord legally

made under the compulsory licensing provisions of

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

(emphasis added).

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

Opinion of the Court

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

This history reiterates the importance of the “first sale”

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

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

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

a lawfully-made copy authorizes its owner to dispose of

it freely”). It explains, as we have explained, the nongeo­

graphical purposes of the words “lawfully made under this

title.” Part II–B, supra. And it says nothing about geog­

raphy. Nor, importantly, did §109(a)’s predecessor provi­

sion. See supra, at 12. This means that, contrary to the

dissent’s suggestion, any lack of legislative history per­

taining to the “first sale” doctrine only tends to bolster

our position that Congress’ 1976 revision did not intend to

create a drastic geographical change in its revision to that

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

that the legislative history, on balance, supports the non-

geographical interpretation.

Third, Wiley and the dissent claim that a nongeograph­

ical interpretation will make it difficult, perhaps impos­

sible, for publishers (and other copyright holders) to divide

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

publisher may find it more difficult to charge different

prices for the same book in different geographic markets.

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

find no basic principle of copyright law that suggests that

publishers are especially entitled to such rights.

The Constitution describes the nature of American

copyright law by providing Congress with the power to

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

[r]ight to their . . . [w]ritings.” Art. I, §8, cl. 8. The Found­

ers, too, discussed the need to grant an author a limited

right to exclude competition. Compare Letter from Thomas

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

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

(arguing against any monopoly) with Letter from James

32 KIRTSAENG v. JOHN WILEY & SONS, INC.

Opinion of the Court

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

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

to secure production). But the Constitution’s language

nowhere suggests that its limited exclusive right should

include a right to divide markets or a concomitant right

to charge different purchasers different prices for the same

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

knowledge, did any Founder make any such suggestion.

We have found no precedent suggesting a legal preference

for interpretations of copyright statutes that would pro­

vide for market divisions. Cf. Copyright Law Revision, pt.

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

(division of territorial markets was “primarily a matter of

private contract”).

To the contrary, Congress enacted a copyright law that

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

ability to divide domestic markets. And that limitation is

consistent with antitrust laws that ordinarily forbid mar­

ket divisions. Cf. Palmer v. BRG of Ga., Inc., 498 U. S. 46,

49–50 (1990) (per curiam) (“[A]greements between compet­

itors to allocate territories to minimize competition are

illegal”). Whether copyright owners should, or should

not, have more than ordinary commercial power to divide

international markets is a matter for Congress to decide.

We do no more here than try to determine what decision

Congress has taken.

Fourth, the dissent and Wiley contend that our decision

launches United States copyright law into an unprece­

dented regime of “international exhaustion.” Post, at 18–

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

indicative of congressional intent in 1976. The dissent

also claims that it is clear that the United States now

opposes adopting such a regime, but the Solicitor General

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

when pressed at oral argument, the Solicitor General

stated that the consequences of Wiley’s reading of the

Cite as: 568 U. S. ____ (2013) 33

Opinion of the Court

statute (perpetual downstream control) were “worse” than

those of Kirtsaeng’s reading (restriction of market seg­

mentation). Tr. of Oral Arg. 51. And the dissent’s reliance

on the Solicitor General’s position in Quality King is under-

mined by his agreement in that case with our reading

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

Quality King, O. T. 1996, No. 1470, p. 30 (“When . . . Con­

gress wishes to make the location of manufacture relevant

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

(calling it “distinctly unlikely” that Congress would have

provided an incentive for overseas manufacturing).

Moreover, the exhaustion regime the dissent apparently

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

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

right to control the distribution of that good elsewhere.”

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

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

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

significantly eroded such a principle.

IV

For these reasons we conclude that the considerations

supporting Kirtsaeng’s nongeographical interpretation of

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

persuasive. The judgment of the Court of Appeals is

reversed, and the case is remanded for further proceedings

consistent with this opinion.

It is so ordered.

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

KAGAN, J., concurring

SUPREME COURT OF THE UNITED STATES

_________________

No. 11–697

_________________

SUPAP KIRTSAENG, DBA BLUECHRISTINE99,

PETITIONER v. JOHN WILEY & SONS, INC.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE SECOND CIRCUIT

[March 19, 2013]

JUSTICE KAGAN, with whom JUSTICE ALITO joins,

concurring.

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

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

first-sale protection from every copy of a protected work

manufactured abroad. See ante, at 8–16, 28–31. I recog-

nize, however, that the combination of today’s decision

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

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

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

suggest that any problems associated with that limitation

come not from our reading of §109(a) here, but from Qual-

ity King’s holding that §109(a) limits §602(a)(1).

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

an integral part in American copyright law for over a

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

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

to 1976 even arguably limited its application to copies

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

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

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

to enact the new, geographical restriction John Wiley

proposes, which at once would deprive American consum-

ers of important rights and encourage copyright holders to

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

2 KIRTSAENG v. JOHN WILEY & SONS, INC.

KAGAN, J., concurring

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

when combined with Quality King, substantially narrows

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

King held that the importation ban does not reach any

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

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

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

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

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

made under this title” include copies manufactured

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

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

ante, at 26–27.

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

problem, it should recognize Quality King—not our deci-

sion today—as the culprit. Here, after all, we merely

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

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

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

to restrict the importation of copies irrespective of the

first-sale doctrine.1 That result would enable the copy-

right owner to divide international markets in the way

John Wiley claims Congress intended when enacting

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

——————

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

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

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

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

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

and its importation ban thus regulate separate, non-overlapping

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

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

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

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

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

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

dissenting).

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

KAGAN, J., concurring

stream liability on those who purchase and resell in the

United States copies that happen to have been manu-

factured abroad. In other words, that outcome would tar-

get unauthorized importers alone, and not the “libraries,

used-book dealers, technology companies, consumer-goods

retailers, and museums” with whom the Court today is

rightly concerned. Ante, at 19. Assuming Congress

adopted §602(a)(1) to permit market segmentation, I sus-

pect that is how Congress thought the provision would

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

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

but by enabling the copyright holder to control imports

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

now prevents).2

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

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

to its purportedly rightful function of enabling copyright

holders to segment international markets. I think John

Wiley may have a point about what §602(a)(1) was de-

signed to do; that gives me pause about Quality King’s

holding that the first-sale doctrine limits the importation

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

——————

2 Indeed, allowing the copyright owner to restrict imports irrespective

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

far more sensible scheme of market segmentation than would adopting

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

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

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

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

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

so—i.e., produce books in New York, ship them to Thailand, and pre-

vent anyone from importing them back into the United States. But

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

reading of §109(a): To prevent someone like Kirtsaeng from re-

importing the books—and so to segment the Thai market—John Wiley

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

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

divide markets on outsourcing its manufacturing to a foreign country.

4 KIRTSAENG v. JOHN WILEY & SONS, INC.

KAGAN, J., concurring

invitation to save §602(a)(1) from Quality King by destroy-

ing the first-sale protection that §109(a) gives to every

owner of a copy manufactured abroad. That would swap

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

our reading of the statute only less reflective of Congres-

sional intent. If Congress thinks copyright owners need

greater power to restrict importation and thus divide

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

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

Quality King.

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

GINSBURG, J., dissenting

SUPREME COURT OF THE UNITED STATES

_________________

No. 11–697

_________________

SUPAP KIRTSAENG, DBA BLUECHRISTINE99,

PETITIONER v. JOHN WILEY & SONS, INC.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE SECOND CIRCUIT

[March 19, 2013]

JUSTICE GINSBURG, with whom JUSTICE KENNEDY joins,

and with whom JUSTICE SCALIA joins except as to Parts III

and V–B–1, dissenting.

“In the interpretation of statutes, the function of the

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

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

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

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

today adopts an interpretation of the Copyright Act at

odds with Congress’ aim to protect copyright owners

against the unauthorized importation of low-priced, foreign­

made copies of their copyrighted works. The Court’s bold

departure from Congress’ design is all the more stunning,

for it places the United States at the vanguard of the

movement for “international exhaustion” of copyrights—a

movement the United States has steadfastly resisted on

the world stage.

To justify a holding that shrinks to insignificance copy­

right protection against the unauthorized importation of

foreign-made copies, the Court identifies several “practical

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

however, is largely imaginary. Congress’ objective in

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

can be honored without generating the absurd conse­

quences hypothesized in the Court’s opinion. I dissent

2 KIRTSAENG v. JOHN WILEY & SONS, INC.

GINSBURG, J., dissenting

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

and would affirm the sound judgment of the Court of

Appeals.

I

Because economic conditions and demand for particular

goods vary across the globe, copyright owners have a

financial incentive to charge different prices for copies of

their works in different geographic regions. Their ability

to engage in such price discrimination, however, is under­

mined if arbitrageurs are permitted to import copies

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

The question in this case is whether the unauthorized

importation of foreign-made copies constitutes copyright

infringement under U. S. law.

To answer this question, one must examine three provi­

sions of Title 17 of the U. S. Code: §§106(3), 109(a), and

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

copyright owner, including the right “to distribute copies

or phonorecords of the copyrighted work to the public by

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

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

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

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

record lawfully made under this title . . . is entitled,

without the authority of the copyright owner, to sell or

otherwise dispose of the possession of that copy or

phonorecord.” Section 109(a) codifies the “first sale doc­

trine,” a doctrine articulated in Bobbs-Merrill Co. v.

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

copyright owner could not control the price at which re­

tailers sold lawfully purchased copies of its work. The

first sale doctrine recognizes that a copyright owner

should not be permitted to exercise perpetual control over

the distribution of copies of a copyrighted work. At some

point—ordinarily the time of the first commercial sale—

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

GINSBURG, J., dissenting

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

control the distribution of a particular copy is exhausted,

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

otherwise redistributed without the copyright owner’s

authorization.

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

critical, of the three copyright provisions bearing on this

case—is an importation ban. It reads:

“Importation into the United States, without the

authority of the owner of copyright under this title, of

copies or phonorecords of a work that have been

acquired outside the United States is an infringe-

ment of the exclusive right to distribute copies or

phonorecords under section 106, actionable under sec­

tion 501.”

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

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

that a copyright owner’s right to control importation under

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

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

of the first sale doctrine. Quality King thus held that

the importation of copies made in the United States but

sold abroad did not rank as copyright infringement

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

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

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

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

——————

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

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

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

Court, I refer to the provision by its current numbering.

2 Although JUSTICE KAGAN’s concurrence suggests that Quality King

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

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

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

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

4 KIRTSAENG v. JOHN WILEY & SONS, INC.

GINSBURG, J., dissenting

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

Quality King had been “ ‘lawfully made under [Title

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

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

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

the United States Copyright Act, but instead, under the

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

example discussed during a 1964 public meeting on pro­

posed revisions to the U. S. copyright laws,3 the Court

stated:

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

States distribution rights—enforceable under the

Act—to the publisher of the United States edition and

the exclusive British distribution rights to the pub­

lisher of the British edition, . . . presumably only those

[copies] made by the publisher of the United States

edition would be ‘lawfully made under this title’

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

would not provide the publisher of the British edition

who decided to sell in the American market with a de­

fense to an action under §602(a) (or, for that matter,

——————

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

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

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

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

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

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

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

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

unauthorized importation to have real force. See ante, at 3 (acknowl­

edging that “Wiley may have a point about what §602(a)(1) was de­

signed to do”).

3 See Quality King Distributors, Inc. v. L’anza Research Int’l, Inc., 523

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

Further Discussions and Comments on Preliminary Draft for Revised

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

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

Harriet Pilpel)).

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

GINSBURG, J., dissenting

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

of the copies).” Id., at 148.

As the District Court and the Court of Appeals concluded,

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

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

the facts of this case would preclude any invocation of

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

sold at a profit over 600 copies of copyrighted textbooks

printed outside the United States by the Asian subsidiary

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

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

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

‘lawfully made’ not under the United States Copyright

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

523 U. S., at 147. Section 109(a) therefore does not ap-

ply, and Kirtsaeng’s unauthorized importation constitutes

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

The Court does not deny that under the language I have

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

27. Nevertheless, the Court dismisses this language, to

which all Members of the Quality King Court subscribed,

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

discussion was dictum in the sense that it was not essen­

tial to the Court’s judgment. See Quality King, 523 U. S.,

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

resolve cases in which the allegedly infringing imports

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

Court’s conclusion that this dictum was ill considered.

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

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

authorizes a copyright owner to bar the importation of a

copy manufactured abroad for sale abroad.

II

The text of the Copyright Act demonstrates that Con­

gress intended to provide copyright owners with a potent

6 KIRTSAENG v. JOHN WILEY & SONS, INC.

GINSBURG, J., dissenting

remedy against the importation of foreign-made copies of

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

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

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

is most sensibly read as referring to instances in which a

copy’s creation is governed by, and conducted in compli­

ance with, Title 17 of the U. S. Code. This reading is

consistent with the Court’s interpretation of similar lan­

guage in other statutes. See Florida Dept. of Revenue v.

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

(“under” in 11 U. S. C. §1146(a), a Bankruptcy Code provi­

sion exempting certain asset transfers from stamp taxes,

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

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

to Justice Act means “subject to” or “governed by” 5

U. S. C. §554 (internal quotation marks omitted)). It also

accords with dictionary definitions of the word “under.”

See, e.g., American Heritage Dictionary 1887 (5th ed.

2011) (“under” means, among other things, “[s]ubject to

the authority, rule, or control of ”).

Section 109(a), properly read, affords Kirtsaeng no

defense against Wiley’s claim of copyright infringement.

The Copyright Act, it has been observed time and again,

does not apply extraterritorially. See United Dictionary

Co. v. G. & C. Merriam Co., 208 U. S. 260, 264 (1908)

(copyright statute requiring that U. S. copyright notices be

placed in all copies of a work did not apply to copies pub­

lished abroad because U. S. copyright laws have no “force”

beyond the United States’ borders); 4 M. Nimmer & D.

Nimmer, Copyright §17.02, p. 17–18 (2012) (hereinafter

Nimmer) (“[C]opyright laws do not have any extraterrito­

rial operation.”); 4 W. Patry, Copyright §13:22, p. 13–66

(2012) (hereinafter Patry) (“Copyright laws are rigor-

ously territorial.”). The printing of Wiley’s foreign­

manufactured textbooks therefore was not governed by

Title 17. The textbooks thus were not “lawfully made

Cite as: 568 U. S. ____ (2013) 7

GINSBURG, J., dissenting

under [Title 17],” the crucial precondition for application

of §109(a). And if §109(a) does not apply, there is no dis­

pute that Kirtsaeng’s conduct constituted copyright in­

fringement under §602(a)(1).

The Court’s point of departure is similar to mine. Ac­

cording to the Court, the phrase “ ‘lawfully made under

this title’ means made ‘in accordance with’ or ‘in compli­

ance with’ the Copyright Act.” Ante, at 8. But the Court

overlooks that, according to the very dictionaries it cites,

ante, at 9, the word “under” commonly signals a relation­

ship of subjection, where one thing is governed or regu-

lated by another. See Black’s Law Dictionary 1525 (6th ed.

1990) (“under” “frequently” means “inferior” or “subordi­

nate” (internal quotation marks omitted)); 18 Oxford

English Dictionary 950 (2d ed. 1989) (“under” means,

among other things, “[i]n accordance with (some regulative

power or principle)” (emphasis added)). See also Webster’s

Third New International Dictionary 2487 (1961) (“under”

means, among other things, “in . . . a condition of sub-

jection, regulation, or subordination” and “suffering re­

striction, restraint, or control by”). Only by disregarding

this established meaning of “under” can the Court arrive

at the conclusion that Wiley’s foreign-manufactured text­

books were “lawfully made under” U. S. copyright law,

even though that law did not govern their creation. It is

anomalous, however, to speak of particular conduct as

“lawful” under an inapplicable law. For example, one

might say that driving on the right side of the road in

England is “lawful” under U. S. law, but that would be so

only because U. S. law has nothing to say about the sub­

ject. The governing law is English law, and English law

demands that driving be done on the left side of the road.4

——————

4 The Court asserts that my position gives the word “lawfully” in

§109(a) “little, if any, linguistic work to do.” Ante, at 9. That is not so.

My reading gives meaning to each word in the phrase “lawfully made

8 KIRTSAENG v. JOHN WILEY & SONS, INC.

GINSBURG, J., dissenting

The logical implication of the Court’s definition of the

word “under” is that any copy manufactured abroad—even

a piratical one made without the copyright owner’s author­

ization and in violation of the law of the country where it

was created—would fall within the scope of §109(a). Any

such copy would have been made “in accordance with” or

“in compliance with” the U. S. Copyright Act, in the sense

that manufacturing the copy did not violate the Act (be­

cause the Act does not apply extraterritorially).

The Court rightly refuses to accept such an absurd

conclusion. Instead, it interprets §109(a) as applying only

to copies whose making actually complied with Title 17, or

would have complied with Title 17 had Title 17 been ap­

plicable (i.e., had the copies been made in the United

States). See ante, at 8 (“§109(a)’s ‘first sale’ doctrine would

apply to copyrighted works as long as their manufacture

met the requirements of American copyright law.”). Con­

gress, however, used express language when it called for

such a counterfactual inquiry in 17 U. S. C. §§602(a)(2)

and (b). See §602(a)(2) (“Importation into the United

States or exportation from the United States, without the

authority of the owner of copyright under this title, of

copies or phonorecords, the making of which either consti­

tuted an infringement of copyright, or which would have

constituted an infringement of copyright if this title had

been applicable, is an infringement of the exclusive right

to distribute copies or phonorecords under section 106.”

(emphasis added)); §602(b) (“In a case where the making

——————

under this title.” The word “made” signifies that the conduct at issue is

the creation or manufacture of a copy. See Webster’s Third New

International Dictionary 1356 (1961) (defining “made” as “artificially

produced by a manufacturing process”). The word “lawfully” indicates

that for §109(a) to apply, the copy’s creation must have complied with

some body of law. Finally, the prepositional phrase “under this title”

clarifies what that body of law is—namely, the copyright prescriptions

contained in Title 17 of the U. S. Code.

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

GINSBURG, J., dissenting

of the copies or phonorecords would have constituted an

infringement of copyright if this title had been applicable,

their importation is prohibited.” (emphasis added)). Had

Congress intended courts to engage in a similarly hypo­

thetical inquiry under §109(a), Congress would pre­

sumably have included similar language in that section.

See Russello v. United States, 464 U. S. 16, 23 (1983)

(“ ‘[W]here Congress includes particular language in one

section of a statute but omits it in another section of the

same Act, it is generally presumed that Congress acts

intentionally and purposely in the disparate inclusion

or exclusion.’ ” (quoting United States v. Wong Kim Bo,

472 F. 2d 720, 722 (CA5 1972) (per curiam); brackets in

original)).5

——————

5 Attempting to show that my reading of §109(a) is susceptible to the

same criticism, the Court points to the now-repealed “manufacturing

clause,” which required “copies of a work consisting preponderantly of

nondramatic literary material . . . in the English language” to be

“manufactured in the United States or Canada.” Copyright Act of 1976,

§601(a), 90 Stat. 2588. Because Congress expressly referred to manu­

facturing in this provision, the Court contends, the phrase “lawfully

made under this title” in §109(a) cannot mean “manufactured in the

United States.” Ante, at 19. This argument is a non sequitur. I do not

contend that the phrases “lawfully made under this title” and “manu­

factured in the United States” are interchangeable. To repeat, I read

the phrase “lawfully made under this title” as referring to instances in

which a copy’s creation is governed by, and conducted in compliance

with, Title 17 of the U. S. Code. See supra, at 6. Not all copies “manu­

factured in the United States” will satisfy this standard. For example,

piratical copies manufactured in the United States without the copy­

right owner’s authorization are not “lawfully made under [Title 17].”

Nor would the phrase “lawfully manufactured in the United States” be

an exact substitute for “lawfully made under this title.” The making of

a copy may be lawful under Title 17 yet still violate some other provi­

sion of law. Consider, for example, a copy made with the copyright

owner’s authorization by workers who are paid less than minimum

wage. The copy would be “lawfully made under [Title 17]” in the sense

that its creation would not violate any provision of that title, but the

copy’s manufacturing would nonetheless be unlawful due to the viola­

10 KIRTSAENG v. JOHN WILEY & SONS, INC.

GINSBURG, J., dissenting

Not only does the Court adopt an unnatural construc­

tion of the §109(a) phrase “lawfully made under this title.”

Concomitantly, the Court reduces §602(a)(1) to insignifi­

cance. As the Court appears to acknowledge, see ante, at

26, the only independent effect §602(a)(1) has under to­

day’s decision is to prohibit unauthorized importations

carried out by persons who merely have possession of, but

do not own, the imported copies. See 17 U. S. C. §109(a)

(§109(a) applies to any “owner of a particular copy or

phonorecord lawfully made under this title” (emphasis

added)).6 If this is enough to avoid rendering §602(a)(1)

entirely “superfluous,” ante, at 26, it hardly suffices to give

the owner’s importation right the scope Congress intended

it to have. Congress used broad language in §602(a)(1); it

did so to achieve a broad objective. Had Congress intended

simply to provide a copyright remedy against larcenous

lessees, licensees, consignees, and bailees of films and

other copyright-protected goods, see ante, at 13–14, 26, it

likely would have used language tailored to that narrow

purpose. See 2 Nimmer §8.12[B][6][c], at 8–184.31, n. 432

(“It may be wondered whether . . . potential causes of

action [against licensees and the like] are more than theo­

retical.”). See also ante, at 2 (KAGAN, J., concurring) (the

Court’s decision limits §602(a)(1) “to a fairly esoteric set of

——————

tion of the minimum-wage laws.

6 When §602(a)(1) was originally enacted in 1976, it played an addi­

tional role—providing a private cause of action against importers of

piratical goods. See Quality King, 523 U. S., at 146. In 2008, however,

Congress amended §602 to provide for such a cause of action in

§602(a)(2), which prohibits the unauthorized “[i]mportation into the

United States . . . of copies or phonorecords, the making of which either

constituted an infringement of copyright, or which would have consti­

tuted an infringement of copyright if [Title 17] had been applicable.”

See PROIPA, §105(b)(3), 122 Stat. 4259–4260. Thus, under the Court’s

interpretation, the only conduct reached by §602(a)(1) but not

§602(a)(2) is a nonowner’s unauthorized importation of a nonpiratical

copy.

Cite as: 568 U. S. ____ (2013) 11

GINSBURG, J., dissenting

applications”).7

The Court’s decision also overwhelms 17 U. S. C.

§602(a)(3)’s exceptions to §602(a)(1)’s importation prohibi­

tion. 2 P. Goldstein, Copyright §7.6.1.2(a), p. 7:141 (3d ed.

2012) (hereinafter Goldstein).8 Those exceptions permit

the importation of copies without the copyright owner’s

authorization for certain governmental, personal, schol-

arly, educational, and religious purposes. 17 U. S. C.

§602(a)(3). Copies imported under these exceptions “will

often be lawfully made gray market goods purchased

through normal market channels abroad.” 2 Goldstein

——————

7 Notably, the Court ignores the history of §602(a)(1), which reveals

that the primary purpose of the prescription was not to provide a

remedy against rogue licensees, consignees, and bailees, against whom

copyright owners could frequently assert breach-of-contract claims even

in the absence of §602(a)(1). Instead, the primary purpose of §602(a)(1)

was to reach third-party importers, enterprising actors like Kirtsaeng,

against whom copyright owners could not assert contract claims due to

lack of privity. See Part III, infra.

8 Section 602(a)(3) provides:

“This subsection [i.e., §602(a)] does not apply to—

“(A) importation or exportation of copies or phonorecords under the

authority or for the use of the Government of the United States or of

any State or political subdivision of a State, but not including copies or

phonorecords for use in schools, or copies of any audiovisual work

imported for purposes other than archival use;

“(B) importation or exportation, for the private use of the importer or

exporter and not for distribution, by any person with respect to no more

than one copy or phonorecord of any one work at any one time, or by

any person arriving from outside the United States or departing from

the United States with respect to copies or phonorecords forming part

of such person’s personal baggage; or

“(C) importation by or for an organization operated for scholarly,

educational, or religious purposes and not for private gain, with respect

to no more than one copy of an audiovisual work solely for its archival

purposes, and no more than five copies or phonorecords of any other

work for its library lending or archival purposes, unless the importation

of such copies or phonorecords is part of an activity consisting of sys­

tematic reproduction or distribution, engaged in by such organization

in violation of the provisions of section 108(g)(2).”

12 KIRTSAENG v. JOHN WILEY & SONS, INC.

GINSBURG, J., dissenting

§7.6.1.2(a), at 7:141.9 But if, as the Court holds, such

copies can in any event be imported by virtue of §109(a),

§602(a)(3)’s work has already been done. For example,

had Congress conceived of §109(a)’s sweep as the Court

does, what earthly reason would there be to provide, as

Congress did in §602(a)(3)(C), that a library may import

“no more than five copies” of a non-audiovisual work for its

“lending or archival purposes”?

The far more plausible reading of §§109(a) and 602(a),

then, is that Congress intended §109(a) to apply to copies

made in the United States, not to copies manufactured

and sold abroad. That reading of the first sale and impor­

tation provisions leaves §602(a)(3)’s exceptions with real,

meaningful work to do. See TRW Inc. v. Andrews, 534

U. S. 19, 31 (2001) (“It is a cardinal principle of statutory

construction that a statute ought, upon the whole, to be so

construed that, if it can be prevented, no clause, sen­

tence, or word shall be superfluous, void, or insignificant.”

(internal quotation marks omitted)). In the range of circum­

stances covered by the exceptions, §602(a)(3) frees indi­

viduals and entities who purchase foreign-made copies

abroad from the requirement they would otherwise face

under §602(a)(1) of obtaining the copyright owner’s per­

mission to import the copies into the United States.10

——————

9 The term “gray market good” refers to a good that is “imported out­

side the distribution channels that have been contractually negotiated

by the intellectual property owner.” Forsyth & Rothnie, Parallel

Imports, in The Interface Between Intellectual Property Rights and

Competition Policy 429 (S. Anderman ed. 2007). Such goods are also

commonly called “parallel imports.” Ibid.

10 The Court asserts that its reading of §109(a) is bolstered by §104,

which extends the copyright “protection[s]” of Title 17 to a wide variety

of foreign works. See ante, at 10–11. The “protection under this title”

afforded by §104, however, is merely protection against infringing

conduct within the United States, the only place where Title 17 applies.

See 4 W. Patry, Copyright §13:44.10, pp. 13–128 to 13–129 (2012)

(hereinafter Patry). Thus, my reading of the phrase “under this title” in

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

GINSBURG, J., dissenting

III

The history of §602(a)(1) reinforces the conclusion I

draw from the text of the relevant provisions: §109(a)

does not apply to copies manufactured abroad. Section

602(a)(1) was enacted as part of the Copyright Act of 1976,

90 Stat. 2589–2590. That Act was the product of a lengthy

revision effort overseen by the U. S. Copyright Office. See

Mills Music, Inc. v. Snyder, 469 U. S. 153, 159–160 (1985).

In its initial 1961 report on recommended revisions, the

Copyright Office noted that publishers had “suggested

that the [then-existing] import ban on piratical copies

should be extended to bar the importation of . . . foreign

edition[s]” in violation of “agreements to divide interna­

tional markets for copyrighted works.” Copyright Law

Revision: Report of the Register of Copyrights on the

General Revision of the U. S. Copyright Law, 87th Cong.,

1st Sess., 126 (H. R. Judiciary Comm. Print 1961) (herein­

after Copyright Law Revision). See Copyright Act of 1947,

§106, 61 Stat. 663 (“The importation into the United

States . . . of any piratical copies of any work copyrighted

——————

§109(a) is consistent with Congress’ use of that phrase in §104. Fur­

thermore, §104 describes which works are entitled to copyright protec­

tion under U. S. law. But no one disputes that Wiley’s copyrights in the

works at issue in this case are valid. The only question is whether

Kirtsaeng’s importation of copies of those works infringed Wiley’s

copyrights. It is basic to copyright law that “[o]wnership of a copyright

. . . is distinct from ownership of any material object in which the work

is embodied.” 17 U. S. C. §202. See also §101 (“ ‘Copies’ are material

objects, other than phonorecords, in which a work is fixed by any

method now known or later developed, and from which the work can be

perceived, reproduced, or otherwise communicated, either directly or

with the aid of a machine or device.”). Given the distinction copyright

law draws between works and copies, §104 is inapposite to the question

here presented. 4 Patry §13:44.10, at 13–129 (“There is no connection,

linguistically or substantively, between Section[s] 104 and 109: Section

104 deals with national eligibility for the intangible work of authorship;

Section 109(a) deals with the tangible, physical embodiment of the

work, the ‘copy.’ ”).

14 KIRTSAENG v. JOHN WILEY & SONS, INC.

GINSBURG, J., dissenting

in the United States . . . is prohibited.”). The Copyright

Office originally recommended against such an extension

of the importation ban, reasoning that enforcement of

territorial restrictions was best left to contract law. Copy­

right Law Revision 126.

Publishing-industry representatives argued strenuously

against the position initially taken by the Copyright Of­

fice. At a 1962 panel discussion on the Copyright Office’s

report, for example, Horace Manges of the American Book

Publishers Council stated:

“When a U. S. book publisher enters into a contract

with a British publisher to acquire exclusive U. S.

rights for a particular book, he often finds that the

English edition . . . of that particular book finds its

way into this country. Now it’s all right to say, ‘Com­

mence a lawsuit for breach of contract.’ But this is

expensive, burdensome, and, for the most part, inef­

fective.” Copyright Law Revision Part 2: Discussion

and Comments on Report of the Register of Copy­

rights on the General Revision of the U. S. Copyright

Law, 88th Cong., 1st Sess., 212 (H. R. Judiciary

Comm. Print 1963).

Sidney Diamond, representing London Records, elabo­

rated on Manges’ statement. “There are many situations,”

he explained, “in which it is not necessarily a question of

the inadequacy of a contract remedy—in the sense that it

may be difficult or not quick enough to solve the particular

problem.” Id., at 213. “Very frequently,” Diamond stated,

publishers “run into a situation where . . . copies of [a]

work . . . produced in a foreign country . . . may be shipped

[to the United States] without violating any contract of the

U. S. copyright proprietor.” Ibid. To illustrate, Diamond

noted, if a “British publisher [sells a copy] to an individual

who in turn ship[s] it over” to the United States, the indi­

vidual’s conduct would not “violate [any] contract between

Cite as: 568 U. S. ____ (2013) 15

GINSBURG, J., dissenting

the British and the American publisher.” Ibid. In such a

case, “no possibility of any contract remedy” would exist.

Ibid. The facts of Kirtsaeng’s case fit Diamond’s example,

save that the copies at issue here were printed and ini-

tially sold in Asia rather than Great Britain.

After considering comments on its 1961 report, the

Copyright Office “prepared a preliminary draft of provi­

sions for a new copyright statute.” Copyright Law Revi­

sion Part 3: Preliminary Draft for Revised U. S. Copyright

Law and Discussions and Comments on the Draft, 88th

Cong., 2d Sess., V (H. R. Judiciary Comm. Print 1964).

Section 44 of the draft statute addressed the concerns

raised by publishing-industry representatives. In particu­

lar, §44(a) provided:

“Importation into the United States of copies or rec­

ords of a work for the purpose of distribution to the

public shall, if such articles are imported without the

authority of the owner of the exclusive right to dis­

tribute copies or records under this title, constitute an

infringement of copyright actionable under section 35

[i.e., the section providing for a private cause of action

for copyright infringement].” Id., at 32–33.

In a 1964 panel discussion regarding the draft statute,

Abe Goldman, the Copyright Office’s General Counsel, left

no doubt about the meaning of §44(a). It represented, he

explained, a “shif[t]” from the Copyright Office’s 1961

report, which had recommended against using copyright

law to facilitate publishers’ efforts to segment interna­

tional markets. Copyright Law Revision Part 4: Further

Discussions and Comments on Preliminary Draft for

Revised U. S. Copyright Law, 88th Cong., 2d Sess., 203

(H. R. Judiciary Comm. Print 1964). Section 44(a), Gold­

man stated, would allow copyright owners to bring in­

fringement actions against importers of “foreign copies

that were made under proper authority.” Ibid. See also

16 KIRTSAENG v. JOHN WILEY & SONS, INC.

GINSBURG, J., dissenting

id., at 205–206 (Goldman agreed with a speaker’s com­

ment that §44(a) “enlarge[d]” U. S. copyright law by ex­

tending import prohibitions “to works legally produced in

Europe” and other foreign countries).11

The next step in the copyright revision process was the

introduction in Congress of a draft bill on July 20, 1964.

See Copyright Law Revision Part 5: 1964 Revision Bill

with Discussions and Comments, 89th Cong., 1st Sess., III

(H. R. Judiciary Comm. Print 1965). After another round

of public comments, a revised bill was introduced on Feb­

ruary 4, 1965. See Copyright Law Revision Part 6: Sup­

plementary Report of the Register of Copyrights on the

General Revision of the U. S. Copyright Law: 1965 Revi­

sion Bill, 89th Cong., 1st Sess., V (H. R. Judiciary Comm.

Print 1965) (hereinafter Copyright Law Revision Part 6).

In language closely resembling the statutory text later

enacted by Congress, §602(a) of the 1965 bill provided:

“Importation into the United States, without the au­

thority of the owner of copyright under this title, of

copies or phonorecords of a work for the purpose of

distribution to the public is an infringement of the ex­

clusive right to distribute copies or phonorecords un­

der section 106, actionable under section 501.” Id., at

292.12

——————

11 As the Court observes, ante, at 29, Irwin Karp of the Authors

League of America stated at the 1964 panel discussion that §44(a) ran

counter to “the very basic concept of copyright law that, once you’ve sold

a copy legally, you can’t restrict its resale.” Copyright Law Revision

Part 4, at 212. When asked if he was “presenting . . . an argument

against” §44(a), however, Karp responded that he was “neutral on th[e]

provision.” Id., at 211. There is thus little reason to believe that any

changes to the wording of §44(a) before its codification in §602(a) were

made in response to Karp’s discussion of “the problem of restricting

[the] transfer of . . . lawfully obtained [foreign] copies.” Ibid.

12 There is but one difference between this language from the 1965

bill and the corresponding language in the current version of §602(a)(1):

Cite as: 568 U. S. ____ (2013) 17

GINSBURG, J., dissenting

The Court implies that the 1965 bill’s “explici[t] re­

fer[ence] to §106” showed a marked departure from §44(a)

of the Copyright Office’s prior draft. Ante, at 29. The

Copyright Office, however, did not see it that way. In its

summary of the 1965 bill’s provisions, the Copyright Office

observed that §602(a) of the 1965 bill, like §44(a) of the

Copyright Office’s prior draft, see supra, at 15–16, permit­

ted copyright owners to bring infringement actions against

unauthorized importers in cases “where the copyright

owner had authorized the making of [the imported] copies

in a foreign country for distribution only in that country.”

Copyright Law Revision Part 6, at 149–150. See also id.,

at XXVI (Under §602(a) of the 1965 bill, “[a]n unauthorized

importer could be enjoined and sued for damages both

where the copies or phonorecords he was importing

were ‘piratical’ (that is, where their making would have

constituted an infringement if the U. S. copyright law

could have been applied), and where their making was

‘lawful.’ ”).

The current text of §602(a)(1) was finally enacted into

law in 1976. See Copyright Act of 1976, §602(a), 90 Stat.

2589–2590. The House and Senate Committee Reports on

the 1976 Act demonstrate that Congress understood, as

did the Copyright Office, just what that text meant. Both

Reports state:

“Section 602 [deals] with two separate situations: im­

portation of ‘piratical’ articles (that is, copies or

phonorecords made without any authorization of the

——————

In the current version, the phrase “for the purpose of distribution to the

public” is omitted and the phrase “that have been acquired outside the

United States” appears in its stead. There are no material differences

between the quoted language from the 1965 bill and the corresponding

language contained in the 1964 bill. See Copyright Law Revision Part

6: Supplementary Report of the Register of Copyrights on the General

Revision of the U. S. Copyright Law: 1965 Revision Bill, 89th Cong., 1st

Sess., 292–293 (H. R. Judiciary Comm. Print 1965).

18 KIRTSAENG v. JOHN WILEY & SONS, INC.

GINSBURG, J., dissenting

copyright owner), and unauthorized importation of

copies or phonorecords that were lawfully made. The

general approach of section 602 is to make unauthor-

ized importation an act of infringement in both cases,

but to permit the Bureau of Customs to prohibit im­

portation only of ‘piratical’ articles.” S. Rep. No. 94–

473, p. 151 (1975) (emphasis added). See also H. R.

Rep. No. 94–1476, p. 169 (1976) (same).

In sum, the legislative history of the Copyright Act of

1976 is hardly “inconclusive.” Ante, at 28. To the con­

trary, it confirms what the plain text of the Act conveys:

Congress intended §602(a)(1) to provide copyright owners

with a remedy against the unauthorized importation of

foreign-made copies of their works, even if those copies

were made and sold abroad with the copyright owner’s

authorization.13

IV

Unlike the Court’s holding, my position is consistent with

the stance the United States has taken in international­

trade negotiations. This case bears on the highly con­

tentious trade issue of interterritorial exhaustion. The

issue arises because intellectual property law is territorial

in nature, see supra, at 6, which means that creators of

intellectual property “may hold a set of parallel” intellec­

tual property rights under the laws of different nations.

Chiappetta, The Desirability of Agreeing to Disagree: The

WTO, TRIPS, International IPR Exhaustion and a Few

Other Things, 21 Mich. J. Int’l L. 333, 340–341 (2000)

(hereinafter Chiappetta). There is no international con­

——————

13 The Court purports to find support for its position in the House and

Senate Committee Reports on the 1976 Copyright Act. Ante, at 30–31.

It fails to come up with anything in the Act’s legislative history, how­

ever, showing that Congress understood the words “lawfully made under

this title” in §109(a) to encompass foreign-made copies.

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

GINSBURG, J., dissenting

sensus on whether the sale in one country of a good in-

corporating protected intellectual property exhausts the

intellectual property owner’s right to control the distribu­

tion of that good elsewhere. Indeed, the members of the

World Trade Organization, “agreeing to disagree,”14 pro­

vided in Article 6 of the Agreement on Trade-Related

Aspects of Intellectual Property Rights (TRIPS), Apr. 15,

1994, 33 I. L. M. 1197, 1200, that “nothing in this Agree­

ment shall be used to address the issue of . . . exhaustion.”

See Chiappetta 346 (observing that exhaustion of intellec­

tual property rights was “hotly debated” during the TRIPS

negotiations and that Article 6 “reflects [the negotiators’]

ultimate inability to agree” on a single international

standard). Similar language appears in other treaties to

which the United States is a party. See World Intellectual

Property Organization (WIPO) Copyright Treaty, Art. 6(2),

Dec. 20, 1996, S. Treaty Doc. No. 105–17, p. 7 (“Nothing in

this Treaty shall affect the freedom of Contracting Parties

to determine the conditions, if any, under which the ex­

haustion of the right [to control distribution of copies of a

copyrighted work] applies after the first sale or other

transfer of ownership of the original or a copy of the work

with the authorization of the author.”); WIPO Perfor­

mances and Phonograms Treaty, Art. 8(2), Dec. 20, 1996,

S. Treaty Doc. No. 105–17, p. 28 (containing language

nearly identical to Article 6(2) of the WIPO Copyright

Treaty).

In the absence of agreement at the international level,

each country has been left to choose for itself the exhaus­

tion framework it will follow. One option is a national­

exhaustion regime, under which a copyright owner’s right

——————

14 Chiappetta,The Desirability of Agreeing to Disagree: The WTO,

TRIPS, International IPR Exhaustion and a Few Other Things, 21

Mich. J. Int’l L. 333, 340 (2000) (hereinafter Chiappetta) (internal

quotation marks omitted).

20 KIRTSAENG v. JOHN WILEY & SONS, INC.

GINSBURG, J., dissenting

to control distribution of a particular copy is exhausted

only within the country in which the copy is sold. See

Forsyth & Rothnie, Parallel Imports, in The Interface

Between Intellectual Property Rights and Competition

Policy 429, 430 (S. Anderman ed. 2007) (hereinafter

Forsyth & Rothnie). Another option is a rule of international

exhaustion, under which the authorized distribution of a

particular copy anywhere in the world exhausts the copy­

right owner’s distribution right everywhere with respect

to that copy. See ibid. The European Union has adopted

the intermediate approach of regional exhaustion, under

which the sale of a copy anywhere within the European

Economic Area exhausts the copyright owner’s distribu­

tion right throughout that region. See id., at 430, 445.

Section 602(a)(1), in my view, ties the United States to a

national-exhaustion framework. The Court’s decision, in con-

trast, places the United States solidly in the international­

exhaustion camp.

Strong arguments have been made both in favor of, and

in opposition to, international exhaustion. See Chiappetta

360 (“[r]easonable people making valid points can, and

do, reach conflicting conclusions” regarding the desirability

of international exhaustion). International exhaustion

subjects copyright-protected goods to competition from

lower priced imports and, to that extent, benefits con-

sumers. Correspondingly, copyright owners profit from a

national-exhaustion regime, which also enlarges the mon­

etary incentive to create new copyrightable works. See

Forsyth & Rothnie 432–437 (surveying arguments for and

against international exhaustion).

Weighing the competing policy concerns, our Govern­

ment reached the conclusion that widespread adoption of

the international-exhaustion framework would be incon­

sistent with the long-term economic interests of the United

States. See Brief for United States as Amicus Curiae in

Quality King, O. T. 1997, No. 96–1470, pp. 22–26 (herein­

Cite as: 568 U. S. ____ (2013) 21

GINSBURG, J., dissenting

after Quality King Brief).15 Accordingly, the United States

has steadfastly “taken the position in international trade

negotiations that domestic copyright owners should . . .

have the right to prevent the unauthorized importation of

copies of their work sold abroad.” Id., at 22. The United

States has “advanced this position in multilateral trade

negotiations,” including the negotiations on the TRIPS

Agreement. Id., at 24. See also D. Gervais, The TRIPS

Agreement: Drafting History and Analysis §2.63, p. 199

(3d ed. 2008). It has also taken a dim view of our trading

partners’ adoption of legislation incorporating elements

of international exhaustion. See Clapperton & Corones,

Locking in Customers, Locking Out Competitors: Anti-

Circumvention Laws in Australia and Their Potential

Effect on Competition in High Technology Markets, 30

Melbourne U. L. Rev. 657, 664 (2006) (United States

expressed concern regarding international-exhaustion leg-

islation in Australia); Montén, Comment, The Inconsistency

Between Section 301 and TRIPS: Counterproductive

With Respect to the Future of International Protection

of Intellectual Property Rights? 9 Marq. Intellectual

——————

15 The Court states that my “reliance on the Solicitor General’s posi­

tion in Quality King is undermined by his agreement in that case with

[the] reading of §109(a)” that the Court today adopts. Ante, at 33. The

United States’ principal concern in both Quality King and this case,

however, has been to protect copyright owners’ “right to prevent paral­

lel imports.” Brief for United States as Amicus Curiae in Quality King,

O. T. 1997, No. 96–1470, p. 6 (hereinafter Quality King Brief). See also

Brief for United States as Amicus Curiae 14 (arguing that Kirtsaeng’s

interpretation of §109(a), which the Court adopts, would “subver[t]

Section 602(a)(1)’s ban on unauthorized importation”). In Quality King,

the Solicitor General urged this Court to hold that §109(a)’s codification

of the first sale doctrine does not limit the right to control importation

set forth in §602(a). Quality King Brief 7–30. After Quality King

rejected that contention, the United States reconsidered its position,

and it now endorses the interpretation of the §109(a) phrase “lawfully

made under this title” I would adopt. Brief for United States as Amicus

Curiae 6–7, 13–14.

22 KIRTSAENG v. JOHN WILEY & SONS, INC.

GINSBURG, J., dissenting

Property L. Rev. 387, 417–418 (2005) (same with respect

to New Zealand and Taiwan).

Even if the text and history of the Copyright Act were am-

biguous on the answer to the question this case presents—

which they are not, see Parts II–III, supra16—I

would resist a holding out of accord with the firm position

the United States has taken on exhaustion in internation­

al negotiations. Quality King, I acknowledge, discounted

the Government’s concerns about potential inconsistency

with United States obligations under certain bilateral

trade agreements. See 523 U. S., at 153–154. See also

Quality King Brief 22–24 (listing the agreements). That

decision, however, dealt only with copyright-protected

products made in the United States. See 523 U. S., at 154

(GINSBURG, J., concurring). Quality King left open the

question whether owners of U. S. copyrights could retain

control over the importation of copies manufactured and

sold abroad—a point the Court obscures, see ante, at 33

(arguing that Quality King “significantly eroded” the

national-exhaustion principle that, in my view, §602(a)(1)

embraces). The Court today answers that question with a

resounding “no,” and in doing so, it risks undermining the

United States’ credibility on the world stage. While the

Government has urged our trading partners to refrain

from adopting international-exhaustion regimes that could

benefit consumers within their borders but would impact

adversely on intellectual-property producers in the United

States, the Court embraces an international-exhaustion

rule that could benefit U. S. consumers but would likely

——————

16 Congress hardly lacks capacity to provide for international exhaus­

tion when that is its intent. Indeed, Congress has expressly provided

for international exhaustion in the narrow context of semiconductor

chips embodying protected “mask works.” See 17 U. S. C. §§905(2),

906(b). See also 2 M. Nimmer & D. Nimmer, Copyright §8A.06[E],

p. 8A–37 (2012) (hereinafter Nimmer) (“[T]he first sale doctrine under

[§906(b)] expressly immunizes unauthorized importation.”).

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

GINSBURG, J., dissenting

disadvantage foreign holders of U. S. copyrights. This

dissonance scarcely enhances the United States’ “role as a

trusted partner in multilateral endeavors.” Vimar Seguros

y Reaseguros, S. A. v. M/V Sky Reefer, 515 U. S. 528,

539 (1995).

V

I turn now to the Court’s justifications for a decision

difficult to reconcile with the Copyright Act’s text and

history.

A

The Court asserts that its holding “is consistent with

antitrust laws that ordinarily forbid market divisions.”

Ante, at 32. See also ante, at 18 (again referring to anti­

trust principles). Section 602(a)(1), however, read as I do

and as the Government does, simply facilitates copyright

owners’ efforts to impose “vertical restraints” on distribu­

tors of copies of their works. See Forsyth & Rothnie 435

(“Parallel importation restrictions enable manufacturers

and distributors to erect ‘vertical restraints’ in the market

through exclusive distribution agreements.”). See gener-

ally Leegin Creative Leather Products, Inc. v. PSKS, Inc.,

551 U. S. 877 (2007) (discussing vertical restraints). We

have held that vertical restraints are not per se illegal

under §1 of the Sherman Act, 15 U. S. C. §1, because such

“restraints can have procompetitive effects.” 551 U. S., at

881–882.17

——————

17 Despite the Court’s suggestion to the contrary, this case in no

way implicates the per se antitrust prohibition against horizontal

“ ‘[a]greements between competitors to allocate territories to minimize

competition.’ ” Ante, at 32 (quoting Palmer v. BRG of Ga., Inc., 498

U. S. 46, 49 (1990) (per curiam)). Wiley is not requesting authority to

enter into collusive agreements with other textbook publishers that

would, for example, make Wiley the exclusive supplier of textbooks

on particular subjects within particular geographic regions. Instead,

Wiley asserts no more than the prerogative to impose vertical restraints

24 KIRTSAENG v. JOHN WILEY & SONS, INC.

GINSBURG, J., dissenting

B

The Court sees many “horribles” following from a hold­

ing that the §109(a) phrase “lawfully made under this

title” does not encompass foreign-made copies. Ante, at 22

(internal quotation marks omitted). If §109(a) excluded

foreign-made copies, the Court fears, then copyright own­

ers could exercise perpetual control over the downstream

distribution or public display of such copies. A ruling in

Wiley’s favor, the Court asserts, would shutter libraries,

put used-book dealers out of business, cripple art muse­

ums, and prevent the resale of a wide range of consumer

goods, from cars to calculators. Ante, at 19–22. See also

ante, at 2–3 (KAGAN, J., concurring) (expressing concern

about “imposing downstream liability on those who pur­

chase and resell in the United States copies that happen

to have been manufactured abroad”). Copyright law and

precedent, however, erect barriers to the anticipated

horribles.18

1

Recognizing that foreign-made copies fall outside the

ambit of §109(a) would not mean they are forever free of

the first sale doctrine. As earlier observed, see supra, at 2,

the Court stated that doctrine initially in its 1908 Bobbs-

——————

on the distribution of its own textbooks. See Hovenkamp, Post-Sale

Restraints and Competitive Harm: The First Sale Doctrine in Perspec­

tive, 66 N. Y. U. Ann. Survey Am. L. 487, 488 (2011) (“vertical re­

straints” include “limits [on] the way a seller’s own product can be

distributed”).

18 As the Court observes, ante, at 32–33, the United States stated at

oral argument that the types of “horribles” predicted in the Court’s

opinion would, if they came to pass, be “worse than the frustration of

market segmentation” that will result from the Court’s interpretation

of §109(a). Tr. of Oral Arg. 51. The United States, however, recognized

that this purported dilemma is a false one. As the United States

explained, the Court’s horribles can be avoided while still giving mean­

ingful effect to §602(a)(1)’s ban on unauthorized importation. Ibid.

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

GINSBURG, J., dissenting

Merrill decision. At that time, no statutory provision

expressly codified the first sale doctrine. Instead, copy­

right law merely provided that copyright owners had “the

sole liberty of printing, reprinting, publishing, completing,

copying, executing, finishing, and vending” their works.

Copyright Act of 1891, §1, 26 Stat. 1107.

In Bobbs-Merrill, the Court addressed the scope of the

statutory right to “ven[d].” In granting that right, the

Court held, Congress did not intend to permit copyright

owners “to fasten . . . a restriction upon the subsequent

alienation of the subject-matter of copyright after the

owner had parted with the title to one who had acquired

full dominion over it and had given a satisfactory price for

it.” 210 U. S., at 349–350. “[O]ne who has sold a copy­

righted article . . . without restriction,” the Court ex­

plained, “has parted with all right to control the sale of it.”

Id., at 350. Thus, “[t]he purchaser of a book, once sold by

authority of the owner of the copyright, may sell it again,

although he could not publish a new edition of it.” Ibid.

Under the logic of Bobbs-Merrill, the sale of a foreign­

manufactured copy in the United States carried out with

the copyright owner’s authorization would exhaust the

copyright owner’s right to “vend” that copy. The copy

could thenceforth be resold, lent out, or otherwise redis­

tributed without further authorization from the copyright

owner. Although §106(3) uses the word “distribute” rather

than “vend,” there is no reason to think Congress intended

the word “distribute” to bear a meaning different from the

construction the Court gave to the word “vend” in Bobbs-

Merrill. See ibid. (emphasizing that the question before

the Court was “purely [one] of statutory construction”).19

——————

19 It appears that the Copyright Act of 1976 omitted the word “vend”

and introduced the word “distribute” to avoid the “redundan[cy]”

present in pre-1976 law. Copyright Law Revision: Report of the Regis­

ter of Copyrights on the General Revision of the U. S. Copyright Law,

87th Cong., 1st Sess., 21 (H. R. Judiciary Comm. Print 1961) (noting

26 KIRTSAENG v. JOHN WILEY & SONS, INC.

GINSBURG, J., dissenting

Thus, in accord with Bobbs-Merrill, the first authorized

distribution of a foreign-made copy in the United States

exhausts the copyright owner’s distribution right under

§106(3). After such an authorized distribution, a library

may lend, or a used-book dealer may resell, the foreign­

made copy without seeking the copyright owner’s permis­

sion. Cf. ante, at 19–21.

For example, if Wiley, rather than Kirtsaeng, had

imported into the United States and then sold the foreign­

made textbooks at issue in this case, Wiley’s §106(3) dis­

tribution right would have been exhausted under the

rationale of Bobbs-Merrill. Purchasers of the textbooks

would thus be free to dispose of the books as they wished

without first gaining a license from Wiley.

This line of reasoning, it must be acknowledged, signifi­

cantly curtails the independent effect of §109(a). If, as I

maintain, the term “distribute” in §106(3) incorporates the

first sale doctrine by virtue of Bobbs-Merrill, then

§109(a)’s codification of that doctrine adds little to the

regulatory regime.20 Section 109(a), however, does serve

——————

that the exclusive rights to “publish” and “vend” works under the

Copyright Act of 1947, §1(a), 61 Stat. 652–653, were “redundant”).

20 My position that Bobbs-Merrill lives on as a limiting construction of

the §106(3) distribution right does not leave §109(a) with no work to do.

There can be little doubt that the books at issue in Bobbs-Merrill were

published and first sold in the United States. See Bobbs-Merrill Co. v.

Straus, 139 F. 155, 157 (CC SDNY 1905) (the publisher claiming copy-

right infringement in Bobbs-Merrill was incorporated and had its

principal office in Indiana). See also Copyright Act of 1891, §3, 26 Stat.

1107–1108 (generally prohibiting importation, even by the copyright

owner, of foreign-manufactured copies of copyrighted books); 4 Patry

§13:40, at 13–111 (under the Copyright Act of 1891, “copies of books by

both foreign and U. S. authors had to be printed in the United States”).

But cf. ante, at 18 (asserting, without acknowledging the 1891 Copy­

right Act’s general prohibition against the importation of foreign-made

copies of copyrighted books, that the Court is unable to find any “geo­

graphical distinctions . . . in Bobbs-Merrill ”). Thus, exhaustion occurs

under Bobbs-Merrill only when a copy is distributed within the United

Cite as: 568 U. S. ____ (2013) 27

GINSBURG, J., dissenting

as a statutory bulwark against courts deviating from

Bobbs-Merrill in a way that increases copyright owners’

control over downstream distribution, and legislative

history indicates that is precisely the role Congress in­

tended §109(a) to play. Congress first codified the first

sale doctrine in §41 of the Copyright Act of 1909, 35 Stat.

1084.21 It did so, the House Committee Report on the

1909 Act explains, “in order to make . . . clear that [Con­

gress had] no intention [of] enlarg[ing] in any way the

construction to be given to the word ‘vend.’ ” H. R. Rep.

No. 2222, 60th Cong., 2d Sess., 19 (1909). According to the

Committee Report, §41 was “not intended to change [exist­

ing law] in any way.” Ibid. The position I have stated and

explained accords with this expression of congressional

intent. In enacting §41 and its successors, I would hold,

Congress did not “change . . . existing law,” ibid., by strip­

ping the word “vend” (and thus its substitute “distribute”)

of the limiting construction imposed in Bobbs-Merrill.

In any event, the reading of the Copyright Act to which

I subscribe honors Congress’ aim in enacting §109(a)

while the Court’s reading of the Act severely diminishes

§602(a)(1)’s role. See supra, at 10–12. My position in no

way tugs against the principle underlying §109(a)—i.e.,

that certain conduct by the copyright owner exhausts the

——————

States with the copyright owner’s permission, not when it is distributed

abroad. But under §109(a), as interpreted in Quality King, any author­

ized distribution of a U. S.-made copy, even a distribution occurring in

a foreign country, exhausts the copyright owner’s distribution right

under §106(3). See 523 U. S., at 145, n. 14. Section 109(a) therefore

provides for exhaustion in a circumstance not reached by Bobbs-Merrill.

21 Section 41 of the 1909 Act provided: “[N]othing in this Act shall be

deemed to forbid, prevent, or restrict the transfer of any copy of a

copyrighted work the possession of which has been lawfully obtained.”

35 Stat. 1084. This language was repeated without material change in

§27 of the Copyright Act of 1947, 61 Stat. 660. As noted above, see

supra, at 2, 17 U. S. C. §109(a) sets out the current codification of the

first sale doctrine.

28 KIRTSAENG v. JOHN WILEY & SONS, INC.

GINSBURG, J., dissenting

owner’s §106(3) distribution right. The Court, in contrast,

fails to give meaningful effect to Congress’ manifest intent

in §602(a)(1) to grant copyright owners the right to control

the importation of foreign-made copies of their works.

2

Other statutory prescriptions provide further protection

against the absurd consequences imagined by the Court.

For example, §602(a)(3)(C) permits “an organization oper­

ated for scholarly, educational, or religious purposes” to

import, without the copyright owner’s authorization, up to

five foreign-made copies of a non-audiovisual work—

notably, a book—for “library lending or archival purposes.”

But cf. ante, at 19–20 (suggesting that affirming the Se­

cond Circuit’s decision might prevent libraries from lend­

ing foreign-made books).22

The Court also notes that amici representing art muse­

ums fear that a ruling in Wiley’s favor would prevent

museums from displaying works of art created abroad.

Ante, at 22 (citing Brief for Association of Art Museum

Directors et al.). These amici observe that a museum’s

right to display works of art often depends on 17 U. S. C.

§109(c). See Brief for Association of Art Museum Direc­

tors et al. 11–13.23 That provision addresses exhaustion of

——————

22 A group of amici representing libraries expresses the concern

that lower courts might interpret §602(a)(3)(C) as authorizing only

the importing, but not the lending, of foreign-made copies of

non-audiovisual works. See Brief for American Library Association

et al. 20. The United States maintains, and I agree, however, that

§602(a)(3)(C) “is fairly (and best) read as implicitly authorizing lending,

in addition to importation, of all works other than audiovisual works.”

Brief for United States as Amicus Curiae 30, n. 6.

23 Title 17 U. S. C. §109(c) provides: “Notwithstanding the provisions

of section 106(5), the owner of a particular copy lawfully made under

this title, or any person authorized by such owner, is entitled, without

the authority of the copyright owner, to display that copy publicly,

either directly or by the projection of no more than one image at a time,

to viewers present at the place where the copy is located.”

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

GINSBURG, J., dissenting

a copyright owner’s exclusive right under §106(5) to

publicly display the owner’s work. Because §109(c), like

§109(a), applies only to copies “lawfully made under this

title,” amici contend that a ruling in Wiley’s favor would

prevent museums from invoking §109(c) with respect to

foreign-made works of art. Id., at 11–13.24

Limiting §109(c) to U. S.-made works, however, does not

bar art museums from lawfully displaying works made in

other countries. Museums can, of course, seek the copy­

right owner’s permission to display a work. Furthermore,

the sale of a work of art to a U. S. museum may carry with

it an implied license to publicly display the work. See 2

Patry §5:131, at 5–280 (“[C]ourts have noted the potential

availability of an implied nonexclusive licens[e] when the

circumstances . . . demonstrate that the parties intended

that the work would be used for a specific purpose.”).

Displaying a work of art as part of a museum exhibition

might also qualify as a “fair use” under 17 U. S. C. §107.

Cf. Bouchat v. Baltimore Ravens Ltd. Partnership, 619

F. 3d 301, 313–316 (CA4 2010) (display of copyrighted logo

in museum-like exhibition constituted “fair use”).

The Court worries about the resale of foreign-made

consumer goods “contain[ing] copyrightable software pro­

grams or packaging.” Ante, at 21. For example, the Court

observes that a car might be programmed with diverse

forms of software, the copyrights to which might be

owned by individuals or entities other than the manu-

facturer of the car. Ibid. Must a car owner, the Court

asks, obtain permission from all of these various copyright

owners before reselling her car? Ibid. Although this

question strays far from the one presented in this case and

briefed by the parties, principles of fair use and implied

——————

24 The word “copy,” as it appears in §109(c), applies to the original of a

work of art because the Copyright Act defines the term “copies” to

“includ[e] the material object . . . in which the work is first fixed.” §101.

30 KIRTSAENG v. JOHN WILEY & SONS, INC.

GINSBURG, J., dissenting

license (to the extent that express licenses do not exist)

would likely permit the car to be resold without the copy­

right owners’ authorization.25

Most telling in this regard, no court, it appears, has

been called upon to answer any of the Court’s “horribles”

in an actual case. Three decades have passed since a

federal court first published an opinion reading §109(a) as

applicable exclusively to copies made in the United States.

See Columbia Broadcasting System, Inc. v. Scorpio Music

Distributors, Inc., 569 F. Supp. 47, 49 (ED Pa. 1983),

summarily aff ’d, 738 F. 2d 424 (CA3 1984) (table). Yet

Kirtsaeng and his supporting amici cite not a single case

in which the owner of a consumer good authorized for sale

in the United States has been sued for copyright infringe­

ment after reselling the item or giving it away as a gift or

to charity. The absence of such lawsuits is unsurprising.

Routinely suing one’s customers is hardly a best business

——————

25 Principlesof fair use and implied license may also allow a U. S.

tourist “who buys a copyrighted work of art, a poster, or . . . a bumper

sticker” abroad to publicly “display it in America without the copyright

owner’s further authorization.” Ante, at 15. (The tourist could lawfully

bring the work of art, poster, or bumper sticker into the United States

under 17 U. S. C. §602(a)(3)(B), which provides that §602(a)(1)’s impor­

tation ban does not apply to “importation . . . by any person arriving

from outside the United States . . . with respect to copies . . . forming

part of such person’s personal baggage.”). Furthermore, an individual

clearly would not incur liability for infringement merely by displaying a

foreign-made poster or other artwork in her home. See §106(5) (grant­

ing the owners of copyrights in “literary, musical, dramatic, and chore­

ographic works, pantomimes, and pictorial, graphic, or sculptural

works” the exclusive right “to display the copyrighted work publicly”

(emphasis added)). See also §101 (a work is displayed “publicly” if it is

displayed “at a place open to the public or at any place where a sub­

stantial number of persons outside of a normal circle of a family and its

social acquaintances is gathered” (emphasis added)). Cf. 2 Nimmer

§8.14[C][1], at 8–192.2(1) (“[A] performance limited to members of

the family and invited guests is not a public performance.” (footnote

omitted)).

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

GINSBURG, J., dissenting

practice.26 Manufacturers, moreover, may be hesitant to

do business with software programmers taken to suing

consumers. Manufacturers may also insist that soft­

ware programmers agree to contract terms barring such

lawsuits.

The Court provides a different explanation for the

absence of the untoward consequences predicted in its

opinion—namely, that lower court decisions regarding the

scope of §109(a)’s first sale prescription have not been

uniform. Ante, at 23. Uncertainty generated by these

conflicting decisions, the Court notes, may have deterred

some copyright owners from pressing infringement claims.

Ante, at 23–24. But if, as the Court suggests, there are a

multitude of copyright owners champing at the bit to bring

lawsuits against libraries, art museums, and consumers in

an effort to exercise perpetual control over the down­

stream distribution and public display of foreign-made

copies, might one not expect that at least a handful of such

lawsuits would have been filed over the past 30 years?

The absence of such suits indicates that the “practical

problems” hypothesized by the Court are greatly exagger­

ated. Ante, at 24.27 They surely do not warrant disregard­

——————

26 Exerting extensive control over secondary markets may not always

be in a manufacturer’s best interest. Carmakers, for example, often

trumpet the resale value of their vehicles. See, e.g., Nolan, UD grad

leads Cadillac marketing, Dayton Daily News, Apr. 2, 2009, p. A8

(“Cadillac plays up its warranty coverage and reliable resale value to

prospective customers.”). If the transaction costs of reselling vehicles

were to rise, consumers’ perception of a new car’s value, and thus the

price they are willing to pay for such a car, might fall—an outcome

hardly favorable to automobile manufacturers.

27 It should not be overlooked that the ability to prevent importation

of foreign-made copies encourages copyright owners such as Wiley to

offer copies of their works at reduced prices to consumers in less devel­

oped countries who might otherwise be unable to afford them. The

Court’s holding, however, prevents copyright owners from barring the

importation of such low-priced copies into the United States, where

they will compete with the higher priced editions copyright owners

32 KIRTSAENG v. JOHN WILEY & SONS, INC.

GINSBURG, J., dissenting

ing Congress’ intent, expressed in §602(a)(1), to grant

copyright owners the authority to bar the importation of

foreign-made copies of their works. Cf. Hartford Under-

writers Ins. Co. v. Union Planters Bank, N. A., 530 U. S. 1,

6 (2000) (“[W]hen the statute’s language is plain, the sole

function of the courts—at least where the disposition

required by the text is not absurd—is to enforce it accord­

ing to its terms.” (internal quotation marks omitted)).

VI

To recapitulate, the objective of statutory interpretation

is “to give effect to the intent of Congress.” American

Trucking Assns., 310 U. S., at 542. Here, two congres-

sional aims are evident. First, in enacting §602(a)(1), Con­

gress intended to grant copyright owners permission to

segment international markets by barring the importation

of foreign-made copies into the United States. Second, as

codification of the first sale doctrine underscores, Congress

did not want the exclusive distribution right conferred in

§106(3) to be boundless. Instead of harmonizing these

objectives, the Court subordinates the first entirely to the

second. It is unsurprising that none of the three major

treatises on U. S. copyright law embrace the Court’s con­

struction of §109(a). See 2 Nimmer §8.12[B][6][c], at

——————

make available for sale in this country. To protect their profit margins

in the U. S. market, copyright owners may raise prices in less devel­

oped countries or may withdraw from such markets altogether. See

Brief for United States as Amicus Curiae 26; Brief for Text and Aca­

demic Authors Association as Amicus Curiae 12; Brief for Association of

American Publishers as Amicus Curiae 37. See also Chiappetta 357–

358 (a rule of national exhaustion “encourages entry and participation

in developing markets at lower, locally more affordable prices by

eliminating them as risky sources of cheaper parallel imports back into

premium markets”). Such an outcome would disserve consumers—and

especially students—in developing nations and would hardly advance

the “American foreign policy goals” of supporting education and eco­

nomic development in such countries. Quality King Brief 25–26.

Cite as: 568 U. S. ____ (2013) 33

GINSBURG, J., dissenting

8–184.34 to 8–184.35; 2 Goldstein §7.6.1.2(a), at 7:141; 4

Patry §§13:22, 13:44, 13:44.10.

Rather than adopting the very international-exhaustion

rule the United States has consistently resisted in

international-trade negotiations, I would adhere to the

national-exhaustion framework set by the Copyright

Act’s text and history. Under that regime, codified in

§602(a)(1), Kirtsaeng’s unauthorized importation of the

foreign-made textbooks involved in this case infringed

Wiley’s copyrights. I would therefore affirm the Second

Circuit’s judgment.