Kirtsaeng v. John Wiley & Sons, Inc. (11-697)
argument 11-697Kirtsaeng v. John Wiley & Sons, Inc.
Supreme Court of the United States
1h 0m
6 speakers
8 chapters
transcribed 5 days ago
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What is the central legal question about “lawfully made under this title” in Kirtsaeng v. Wiley?
We'll hear argument next in Case 11-697, Kurtzang v. John Wiley and Sons. Mr. Rosencrantz.
Thank you, Mr. Chief Justice. It may please the Court. This case presents a stark choice between two plausible definitions of the phrase lawfully made under this title. Our definition is the more consistent with the English language and is the only definition that does not do mischief with the same use of that phrase each time it's repeated. Ours is the only one consistent with a 400-year common law history and 65-year-old right that was in the statute through 1976 and consistent with the principle that Congress doesn't abolish those things without being clear. Ours gives the copyright owners much of what they asked for when they were seeking an importation provision, just not everything, whereas Wiley's grants them rights far beyond anything that anyone could have imagined asking for back then.
But your reading is essentially once a copy is sold anywhere, The copyright owner loses control of distribution everywhere. That is essentially your
— MR. That is correct, Your Honor. And to put a finer point on it, ours is that lawfully made under this title means made wherever in a way that satisfies U.S. copyright standards, made in accordance with
— JUSTICE SOTOMAYOR. Oh, but — so this notion of sold anywhere — end of distribution rights everywhere. That has been called, I think, the universal exhaustion.
International exhaustion. Yes, Your Honor.
And we are told that no country has adopted that international exhaustion principle. regime that most countries adhere to the national exhaustion regime, which nobody is contesting here. That is, if it's manufactured in the United States and sold in the United States, that copy belongs to the person who purchased it, end of case. But if the exhaustion doctrine applies only nationally, then your argument is asking for something that runs against the regime that is accepted in most places.
MR. Your Honor, I have a few answers to that. The first is it is not true that no country adopts national exhaustion. Congress adopted national exhaustion in Sections 905 and 906, six years after the statute was passed, as to microchips. But second, Wiley is making the point that there is now a norm. They say most states, most countries, that is. Back in 1976, Wiley is not even arguing that there was any international norm, much less that the drafters of the statute were focused on international norms. And the truth is that there isn't an international consensus around national exhaustion. We know that for a fact in 1994, when 125 nations got together to They agreed to disagree on international copyright exhaustion principles, and they codified that disagreement to each his own in the TRIPS agreement.
Well, let's take, for example, the European Union, the position in those countries. Suppose we just transferred this case to one of those countries, the exact same case. And my understanding is that they would follow the national exhaustion.
MR. No, Your Honor, not to quibble. They don't follow national exhaustion. They follow regional exhaustion. So — JUSTICE
SOTOMAYOR Yes, but not exhaust — sell a copy in Thailand, then It's home free all
over the world. Agreed, Your Honor. But it is regional. It's not national. And the point here is we've got to, of course, read what Congress wrote. What Congress wrote was lawfully made under this title, not lawfully made in the United States, or not lawfully made under this title and made in the United States. When Congress wants to say that, Congress says that very explicitly.
Do you mean by lawfully made under this title, simply lawfully made in a manner that does not violate United States copyright
law? No, Your Honor. I would say lawfully made under this title means lawfully made in a manner that does not violate the standards. The standards,
okay. So it could be lawfully made in England, Let's say in a country that has compulsory licensing, it could be lawfully made there, but it would not be lawfully made under our copyright
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Chapters
8 chapters
1
What is the central legal question about “lawfully made under this title” in Kirtsaeng v. Wiley?
0:02–7:40
2
How do the parties define and contrast international versus national exhaustion of copyright?
7:40–14:10
3
Why does the petitioner's interpretation of “lawfully made” avoid the “universal exhaustion” doctrine?
14:10–20:42
4
What historical statutes and legislative history are cited to support the market‑segmentation argument?
20:42–28:47
5
How do the hypothetical examples (Toyota, libraries, museums) illustrate the practical impact of the statute?
28:47–35:30
6
What is the relevance of the Bob’s Merrill case and the Quality King precedent to this dispute?
35:30–43:39
7
How does the government’s alternative reading of Section 109A affect the importation prohibition in Section 602A1?
43:39–52:29
8
What final relief does the petitioner request from the Supreme Court?
52:29–1:00:42