The defendant, Kirtsaeng, was having friends buy foreign editions of textbooks (produced in Thailand), and having them shipped the textbooksĚýto America where they were resold by Kirtsaeng for a profit.ĚýThe plaintiff publishing corporation John Wiley & Sons Inc. argued that Kirtsaeng was in violation of section 602(a)(1) of the ; which deals with the importation of copies into the US without copyright owner approval. Kirtsaeng’s defence was section 109(a) which permits persons who buy copies of a works to resell them without any permission from the copyright holder. There appeared to be a conflict between those two sections. The Court of Appeal found that Kirtsaeng had violated section 602(a)(1) and could not rely on section 109(a), in order to keep both sections active. The ABA that line of reasoning.

US copyright law states that “Importation into the United States, without the authority of the owner of copyright under this title, of copies or phonorecords of a work that have been acquired outside the United States is an infringement of the exclusive right to distribute copies or phonorecords under section 106, actionable under ”. states that “notwithstanding the provisions of the owner of a particular copy or phonorecord lawfully made under this title, 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 or phonorecord”. The Court of Appeal identifies section 109(a) as simply a “codification of a long-standing ‘first sale doctrine’”. In other words, the right to sell copies in of the US Copyright act is limited to the right to sell the copy of a work first.

The Court of Appeal, when reconciling these sections, was bound by the previous Supreme Court decision of (hereafter “Quality King”). In that decision, the court held that copies made in the US, sold abroad and then resold again in the US did not contravene section 602(a)(1) because of section 109(a). The Court of Appeal had to explain why this case was different, and the effect of section 109(a). The court focused on the words “made under this title” in section 109(a) and concluded that those words must be interpreted to mean “made in the United States” despite the finding that “the relevant text is simply unclear”. That would distinguish this case from the Quality King decision because, in this case, the copies of textbooks were produced in a foreign nation. While the court admittedly struggled with that interpretation, they claimed that they were bound to it, in order to give section 602(a)(1) any force and effect. The court, as well as the , also relied on dictum in the Quality King decision which suggested that people reselling copies could not rely on section 109(a) if the copies were not made in the US.

In coming to their decision the court’s stated goal was “to adopt an interpretation of § 109(a) that best comports with both § 602(a)(1) and the Supreme Court's opinion in Quality King”.Ěý Is interpreting the words “made under this act” in section 109(a) as “made in the USA” the best interpretation to comport with both section 602(a)(1) and Quality King?Ěý The court addressed the interpretation to “made under this act” which would include copies manufactured in foreign nations but it was not adopted.

If we were to adopt an interpretation of “made under this act” that included copies manufactured in foreign nations, Section 602(a)(1) would still have limited effect. Consider a scenario where we have an “importation into the United States”, without the permission of the “owner of copyright”, of copies “acquired outside the United States” however, no sale has taken place prior to the sales in the US.Ěý This might occur when a foreign distributor tries to sell directly into the American market. ĚýThe foreign distributor cannot rely on section 109(a) because these copies have not been sold to them, they were produced by them.Ěý In other words, “made under this title” can be interpreted to apply to copies manufactured in foreign nations without rendering section 602(a)(1) inoperative.

That interpretation allows section 602(a)(1) to have force without the need for a limited interpretation of the words “made under this title” in section 109(a). ĚýThe Court of Appeal, acknowledged that "’lawfully made under this title’ appears in other provisions of Title 17 where it is at least arguable that Congress intended this language to apply to copies of works manufactured outside of the United States”.Ěý ĚýThe court was reluctant to apply this interpretation because section 602(a)(1) “would have no force in the vast majority of cases if the first sale doctrine was interpreted to apply to every copy manufactured abroad that was either made ‘subject to protection under Title 17,’ or ‘consistent with the requirements of Title 17 had Title 17 been applicable’”.

The court didn’t want to apply the section because it would limit the application of section 602(a)(1). ĚýHowever, since the Court in Quality King was willing to restrict the application of section 602(a)(1), why should this court be reluctant to here? At least the broad interpretation allows the law to be interpreted consistently, a goal stated by both the and the , without the need for any problematic interpretation of the words “made under this title”.

Adam Stevenson is a JD Candidate at Western University, Faculty of Law

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On March 26, 2009, the Queen held a for leaders attending the G-20 summit. President Barack Obama and his wife Michelle were the first dignitaries to meet the Queen. During their private meeting, President Obama and the first lady presented the Queen with a gift. The gift was a personalized iPod - complete with 40 show tunes and video footage of the Queen during her 2007 visit to Washington and Virginia – as well as a rare songbook signed by composer Richard Rodgers.

As the British media speculate as to whether Michelle Obama broke protocol by touching the Queen, the if President Obama violated any copyright laws when he gave the Queen her iPod gift.

Traditionally, the Ěýin the United States has allowed for gift giving. The doctrine allows the purchaser to transfer (sell or give away) a lawfully made copy of the copyrighted work without permission once it has been obtained. For example, the owner of a CD, book or artwork can give or resell that item, despite the copyright owner's exclusive right of distribution. However, the doctrine of first sale has often been questioned in our digital age. Many, including the United States Copyright Office, have that the doctrine does not have a place in a digital world where copyrighted material is not owned, but rather, licensed. Ěý

One has to wonder how our marketplace and attitudes within it will be affected if the first sale doctrine – in the digital context - was to be abolished. After all, the concept of first sale is ubiquitous in our everyday life. The acts of giving a CD gift or re-selling a book on eBay were once simple and intuitive. The fact that they now exist and can be obtained digitally presents such complex issues. Now, it is not so easy to figure out what one can or cannot do with digital works.

Presumably, President Obama purchased the 40 show tunes songs from the website and placed them onto the Queen’s intended iPod. When it comes to iTunes, songs that are downloaded can be placed on an unlimited number of iPods or portable music players, but can only be placed on a limited number of computers. According to the Electronic Frontier Foundation, the iTunes terms of service is not explicitly clear as to whether a customer who purchases iTunes are merely licence holders and completely stripped of ownership. The terms of service mainly state that the downloads are “only for personal, noncommercial use.” What falls within the range of personal and noncommercial use?

In this case, it seems as though iTunes on the iPod were given to the Queen as more of a diplomatic use. Thus, copyright owners may be able to argue that the copy of the songs on the iPod was beyond the scope of the iTunes license and thus, considered to be a copyright infringement. However, what if you were to do the same, but instead give the iPod, filled with songs, to your best friend for his birthday? Would that fall within the range or “personal and noncommercial use?” While the expressly forbids any sort of redistribution, the iTunes service agreement is more vague on that issue. This leads to another point, and that is, if different online stores have different terms of service agreements, it makes it that much more difficult to adapt to our digital world.

While the digital world has afforded us with many opportunities we would not otherwise have, living and maneuvering in our digital world has also presented many challenges which we must adapt to. One would assume that if the iPod gift was clearly wrong, President Obama’s advisers would have picked up on it. All this is to say that, if a team of presidential advisers has trouble pinpointing what exactly is allowed and not allowed in our digital world, how are we, as unguided individuals supposed to do the same thing? At the same time, we must remember that our digital world is only in its infancy and with time, terms of service agreements will improve, we will become more accustomed to these types of transactions and ultimately, dealings in the digital world will become more intuitive. We also should not be discouraged by the fact that President Obama and his advisors were uncertain of the relevant copyright law. After all, the fact that President Obama is the first American president to is indicative that the White House is only beginning to embrace emerging technologies.

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