I've been looking over the information in the links, and it looks like international law and first sale rights are at the center of the argument.
Issue: How do Section 602(a)(1) of the Copyright Act, which prohibits the importation of a work without the authority of the copyright’s owner, and Section 109(a) of the Copyright Act, which allows the owner of a copy “lawfully made under this title” to sell or otherwise dispose of the copy without the copyright owner’s permission, apply to a copy that was made and legally acquired abroad and then imported into the United States?
JOSE A. CABRANES, Circuit Judge:
The "first sale doctrine" in copyright law permits the owner of a lawfully purchased copy of a copyrighted work to resell it without limitations imposed by the copyright [*212] holder.[fn1] The existence of the doctrine dates to 1908, when the Supreme Court held that the owner of a copyright could not impose price controls on sales of copies of a copyrighted work beyond the initial sale.[fn2] Congress codified the doctrine in successive Copyright Acts, beginning with the Copyright Act of 1909.[fn3]
The principal question presented in this appeal is whether the first sale doctrine, 17 U.S.C. § 109(a), applies to copies of copy-righted works produced outside of the United States but imported and resold in the United States. Under another basic copyright statute, it is ordinarily the case that "mportation into the United States, without the authority of the owner of copy-right under [the Copyright Act], of copies . . . of a work that have been acquired outside the United States is an infringement of the [owner's] exclusive right to distribute copies. . . ."[fn4]
Defendant contends, however, that individuals may import and resell books manufactured abroad pursuant to 17 U.S.C. § 109(a), which provides that "the owner of a particular copy . . . lawfully made under [the Copyright Act], or any person authorized by such owner, is entitled, without the authority of the copyright owner, to sell or otherwise dispose of the possession of that copy."
Defendant's claim is an issue of first impression in our Court.[fn5]
BACKGROUND
A. The Parties
Plaintiff-appellee John Wiley & Sons, Inc. ("plaintiff or "Wiley") is the publisher of academic, scientific, and educational journals and books, including textbooks, for sale in domestic and international markets. Wiley relies upon a wholly-owned [*213] subsidiary, John Wiley & Sons (Asia) Pte Ltd. ("Wiley Asia"), to manufacture books for sale in foreign countries.[fn6] While the written content of books for the domestic and international markets is often similar or identical, books intended for international [**2]markets can differ from the domestic version in design, supplemental content (such as accompanying CD-ROMS), and the type and quality of materials used for printing, including "thinner paper and different bindings, different cover and jacket designs, fewer internal ink colors, if any, [and] lower quality photographs and graphics." Joint App'x at 18. The foreign editions, moreover, are marked with a legend to designate that they are to be sold only in a particular country or geographic region. One example of such a designation reads as follows:
Authorized for sale in Europe, Asia, Africa and the Middle East Only.
This book is authorized for sale in Europe, Asia, Africa and the Middle East only [and] may not be exported. Exportation 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 Publisher may take legal action to enforce its rights. The Publisher may recover damages and costs, including but not limited to lost profits and attorney's fees, in the event legal action is required.
Joint App'x at 406 (emphasis in original).
Defendant Supap Kirtsaeng ("defendant" or "Kirtsaeng") moved to the United States from Thailand in 1997 to pursue an undergraduate degree in mathematics at Cornell University. According to Kirtsaeng, he later moved to California to pursue a doctoral degree.
B. The Instant Action
To help subsidize the cost of his education, Kirtsaeng allegedly participated in the following scheme: Between 2007 and September 8, 2008, Kirtsaeng's friends and family shipped him foreign edition textbooks printed abroad by Wiley Asia. In turn, Kirtsaeng sold these textbooks on commercial websites such as Bay.com. Using the revenues generated from the sales, Kirtsaeng would reimburse his family and friends for the costs that they incurred during the process of acquiring and shipping the books and then keep any remaining profits for himself. Kirtsaeng claims that, before selling the textbooks, he sought advice from friends in Thailand and consulted "Google Answers," a website which allows web users to seek research help from other web users, to ensure that he could legally resell the foreign editions in the United States.
