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John Wiley & Sons, Inc v. Supap Kirtsaeng

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT August Term, 2009


April 23, 2013

JOHN WILEY & SONS, INC., PLAINTIFF-APPELLEE,
v.
SUPAP KIRTSAENG, DOING BUSINESS AS BLUECHRISTINE99, DEFENDANT-APPELLANT.

Per curiam.

09-4896-cv

John Wiley & Sons, Inc. v. Supap Kirtsaeng

Argued: May 19, 2010

Before: CABRANES and KATZMANN, Circuit Judges, and MURTHA, District Judge.*fn1

This case returns to us on remand from the Supreme Court of the United States, which reversed our prior decision by holding that the "first sale" doctrine, see 17 U.S.C. § 109(a), provides a defense against a copyright infringement claim based on unauthorized resale "where, as here, copies are manufactured abroad with the permission of the copyright owner." Kirtsaeng v. John Wiley & Sons, Inc., 133 S. Ct. 1351, 1358 (2013). Based on this holding, we have nothing left to decide in this case. Kirtsaeng's liability was erroneously premised on the inapplicability of the first sale doctrine to copyrighted works manufactured abroad. The judgment of the United States District Court for the Southern District of New York (Donald C. Pogue, Judge of the United States Court of International Trade, sitting by designation) is reversed and the cause is remanded for such further proceedings as may be appropriate prior to entry of final judgment.

This case returns to us on remand from the Supreme Court of the United States, which reversed our prior decision by holding that the "first sale" doctrine, see 17 U.S.C. § 109(a), provides a defense against a copyright infringement claim based on unauthorized resale "where, as here, copies are manufactured abroad with the permission of the copyright owner." Kirtsaeng v. John Wiley & Sons, Inc., 133 S. Ct. 1351, 1358 (2013). We assume the parties' familiarity with the facts and procedural history of this case.

Based on the Supreme Court's holding, we have nothing left to decide. A jury found defendant-appellant Supap Kirtsaeng liable of copyright infringement based on his importation and resale of copyrighted works manufactured abroad.*fn2 Kirtsaeng's liability was premised on the inapplicability of the first sale doctrine to copyrighted works manufactured abroad, even when (as here) the copyrighted works were manufactured and initially sold in accordance with the copyright laws of the United States.*fn3 The United States District Court for the Southern District of New York (Donald C. Pogue, Judge of the United States Court of International Trade, sitting by designation) denied Kirtsaeng's motion to instruct the jury regarding the applicability of the first sale defense.

In light of the Supreme Court's holding that the first sale doctrine does apply to such works, thus providing Kirtsaeng with a valid defense to copyright infringement, the District Court's judgment is REVERSED, and the cause is REMANDED for such further proceedings as may be appropriate prior to entry of final judgment.


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