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Ordinarily, the first sale doctrine would easily dispose of such a lawsuit. The first sale doctrine, as codified in title 17 of the U.S. Code, states that the owner of a particular copy of a copyrighted work that was “lawfully made under this title” can distribute it however he wants, regardless of the copyright holder’s rights. This doctrine is what currently permits library lending of books, ordinary gift-giving of copyrighted works, as well as the entire market for secondhand media.
However, Wiley is arguing that, since the books at issue were printed outside of the United States, they were not “lawfully made under title 17,” and thus are not subject to the first sale doctrine. They are supported in this by precedential cases in the Ninth Circuit, including Costco v. Omega, in which Public Knowledge also participated as amicus.
PK’s brief, which has been joined by EFF, U.S. PIRG, the American Association of Law Libraries, and the Special Libraries Association, urges the Court to interpret “lawfully made under this title” not as a geographic restriction on the doctrine, but rather as meaning “in accordance with the laws of title 17.” This not only allows a more commonsense reading of the statute, it also prevents every distribution of every copy of a copyrighted work made outside the U.S. from being an infringement.
The major reason why courts have been reluctant to use this more logical reading of the statute is because it would reduce the breadth of another section of the Copyright Act, section 602. The first part of section 602 says that you can’t import of copies of copyrighted works, since those importations would be “distributions,” which only the copyright holder can make or authorize others to make. But if the first sale rule applied to those importations, you wouldn’t have to get that authorization for distribution from the copyright holder. Another part of section 602 says that it’s illegal to import copies that would have been infringing if U.S. copyright laws had applied.
So, the argument goes, wouldn’t applying the first sale doctrine render the two parts of section 602 redundant? If the second part of 602 is clearly aimed at stopping “piratical” copies, what is the first part trying to do?
Well, several things. First of all, even with the application of the first sale doctrine, the first part of section 602 prevents importations by people who don’t actually own the copies they are importing. So even if a stack of DVDs was made legally elsewhere, it’s still a copyright infringement if someone who doesn’t actually own the copies tries to import them. Also, there’s no particular reason that you have to read the two parts of section 602 as being mutually exclusive. It’s just as easy to see the first part of the section laying out the general case of certain types of unlawful importations and the second part getting more specific about copies that would have been infringing when they were made.
Underlying all of this is an admittedly problematic wording in the statute. But given the choice of two interpretations, one of which renders much of the country automatic infringers, and another that makes a separate provision look a little funny, the interpretive choice seems clear.