The United States Supreme Court’s Decision in Kirtsaeng v. Wiley & Sons: An “Inevitable” Step in Which Direction?

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International Review of Intellectual Property and Competition Law






This opinion analyzes the decision of the Supreme Court of the United States in the case Kirtsaeng v. Wiley & Sons. In this decision, the Court ruled that the principle of copyright exhaustion as provided in Section 109(a) of the Copyright Act equally applies to products “lawfully made” in the United States as well as to products that have been “lawfully made” in foreign countries. This “revolutionary” decision came after almost two decades of conflicting positions, including two previous Supreme Court decisions that had failed to clarify the issue, notably Quality King v. L’anza and Costco v. Omega. Yet, a closer look at the decision, particularly at the concurring and dissenting opinions in the case, seems to show that Supreme Court’s position may have been a necessary step that the Court had to take in order to redress the ambiguities that continued to linger on the issue, especially in light of the additional uncertainty that the Court itself had injected into the interpretation of Section 109(a) with its decision in Quality King. Accordingly, more chapters may be awaiting to be written in this American saga on the territorial application of the principle of copyright exhaustion. As the concurring opinion in the case directly suggested, Congress could overrule the Supreme Court and clarify with a legislative amendment that the application of copyright exhaustion in the United States is not international but instead national exhaustion for all products. Calls for copyright reforms not surprisingly, started just days after the decision in Kirtsaeng. Furthermore, even if the Court’s decision would survive future reforms, copyright owners continue to have alternative means, such as contractual clauses and technical measures, to largely reduce the positive effects of the decision for international trade.

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