As an update to my earlier post on the case, the Supreme Court recently issued its decision on international copyright exhaustion.
The Supreme Court reversed the decision of the Second Circuit and held that John Wiley’s copyright was exhausted by the authorized sale of the textbooks in Thailand. Kirtsaeng was free to do whatever he wanted with the books once he lawfully acquired them, including importing them into the United States and reselling them.
Professor Kristen Osenga of the University of Richmond Law School (my wife) provided a podcast for the Federalist Society about the Supreme Court’s decision. http://www.fed-soc.org/publications/detail/kirtsaeng-v-john-wiley-sons-inc-post-decision-scotuscast.
The question of what, if any, impact this decision will have on patent law remains unanswered. The Supreme Court refused to consider an appeal in a patent case on this same issue and left the Federal Circuit’s patent exhaustion opinion in place, even though the decision is contrary to the decision in Kirtsaeng. Ninestar v. ITC.