Kirtsaeng v. John Wiley & Sons, Inc., 133 S. Ct. 1351 (2013) (Breyer; Kagan, concurring; Ginsburg, dissenting).  For a slip opinion, click here.Kirtsaeng03192013

Kirtsaeng is a landmark decision addressing one of the grandest and most universal of  issues of intellectual property: should there be “international exhaustion” of an intellectual property right?  Can an intellectual property owner prevent importation of a product into a country when the specific product was originally made and sold in another country with the owner’s permission?  Does it matter that owner qualified the permission with a territorial restriction?

Kirtsaeng is a copyright case.  The Court, by a majority of six of the nine justices, held that a first authorized sale outside the United States (in Thailand) exhausted the owner’s exclusive right of distribution under United States copyright law.  The case involved textbooks, but the holding will directly impact importation of a wide variety of products containing copyrighted material, including software.  It may impact exhaustion as applied to the unauthorized importation of patented products made or purchased  legally abroad. Read CPLRG™ 0083