throbber
(Slip Opinion)
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`
`
` OCTOBER TERM, 2012
`
`
`Syllabus
`
`1
`
` 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
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` 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)
`
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`

`
`2
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`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
`
`
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`

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

`
`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.
`
`
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`
`
`
`

`
`
`
`
`Cite as: 568 U. S. ____ (2013)
`
`Opinion of the Court
`
`1
`
`
` 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.
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`
`
`
`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
`
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`

`
`2
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`
`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)
`
`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
`
`
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`3
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`

`
`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
`
`
`
`
`
`
`
`4
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`
`
`

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

`
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`
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`
`
`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
`
`
`
`
`
`
`
`

`
`7
`
`
`
`
`
` Cite as: 568 U. S. ____ (2013)
`
`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
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`
`
`
`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).
`
`interpretations,
`Under any of these geographical
`§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
`
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`9
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` Cite as: 568 U. S. ____ (2013)
`
`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
`
`
`
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`
`

`
`10
`
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`
`
`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
`
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` Cite as: 568 U. S. ____ (2013)
`
`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
`
`
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`

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`12
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`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

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