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John Wiley & Sons v. Kirtsaeng

By Matthew Siegal and Binni Shah

In John Wiley & Sons Inc., v. Kirtsaeng, __ F.3d __, 2011 WL 3560003 (2d Cir. Aug. 15, 2011), the Second Circuit took a stand against parallel importation of copyrighted works made under the authority of the U.S. copyright owner in a foreign country. In doing so, it aligned itself with the Ninth Circuit in Omega S.A. v. Costco Wholesale Corp., 541 F.3d 982 (9th Cir. 2008), aff'd 131 S. Ct. 565 (2010) and four of the eight Supreme Court Justices ruling on Costco's appeal. Justice Elena Kagan had recused herself, having opposed Costco's petition for certiorari when still in the Justice Department.

At issue in Wiley was an interpretation of what it means for a work to have been “lawfully made under” the Copyright Act. For some, the answer is simple. They believe it means that the work must be made in the United States, noting that the Act has no extra-territorial effect. Others counter that it means made anywhere, as long as it is made by the U.S. copyright owner, reasoning that lawfully made under the Act means not unlawfully made under the Act. For some, the issue seems to turn on whether they believe that the answer will affect where U.S. book publishers make their books. In any event, unless this case makes it to the Supreme Court, the Ninth and Second Circuits have now spoken on this issue and supported the use of copyright law to combat parallel imports.

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