Nature of the Case
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Facts
John Wiley & Sons, Inc., (P) publishes academic textbooks. P often assigns to its wholly-owned foreign subsidiary, rights to publish, print, and sell P's English language textbooks abroad. Both the foreign and the American copies say: “No part of this publication may be reproduced, stored in a retrieval system, or transmitted in any form or by any means . . . except as permitted under Sections 107 or 108 of the 1976 United States Copyright Act.” There are two essentially equivalent versions of a P textbook, each version manufactured and sold with P's permission: (1) an American version printed and sold in the United States, and (2) a foreign version manufactured and sold abroad. P makes certain that copies of the second version state that they are not to be taken (without permission) into the United States. P, a citizen of Thailand, moved to the United States in 1997 to study mathematics. P successfully completed his undergraduate courses at Cornell, successfully completed a Ph. D. program in mathematics at the University of Southern California, and then, as promised, returned to Thailand to teach. P asked his friends and family in Thailand to buy copies of foreign edition English-language textbooks at Thai bookshops, where they sold at low prices, and mail them to him in the United States. P would then sell them, reimburse his family and friends, and keep the profit. P sued D for copyright infringement. D replied that the books he had acquired were “ 'lawfully made' ” and that he had acquired them legitimately. In P's view, §109(a)'s “first sale” doctrine permitted him to resell or otherwise dispose of the books without the copyright owner's further permission. The District Court held that the doctrine does not apply to “foreign-manufactured goods” (even if made abroad with the copyright owner's permission). The jury then found that D had willfully infringed P's American copyrights by selling and importing without authorization copies of eight of P's copyrighted titles. It assessed statutory damages of $600,000 ($75,000 per work). A split panel of the Second Circuit agreed with the District Court. A dissenting judge thought that the words “lawfully made under this title” do not refer “to a place of manufacture” but rather “focus on whether a particular copy was manufactured lawfully under” America's copyright statute, and that “the lawfulness of the manufacture of a particular copy should be judged by U.S. copyright law.” D appealed.
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