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Ralph Oman is the Pravel, Hewitt, Kimball and Kreiger Professorial Lecturer in intellectual property and patent law at the George Washington University Law School. He can be reached at email@example.com.
Chest deep in the Serbonian bog of the legislative history of the 1976 Copyright Act, the Supreme Court in Kirtsaeng v. John Wiley & Sons has tried valiantly to sort out the competing interpretations of the first sale doctrine and its interface with the right of importation.1 It had tried to resolve the controversy three years earlier in Costco v. Omega, but that case ended in a 4–4 tie (with Justice Kagan having recused herself because she had dealt with the case as solicitor general).2
The case has a human face. An entrepreneurial student from Thailand, Supap Kirtsaeng, saw an easy way to make a lot of money. He had his family and friends in Thailand buy cheap Thai editions of American textbooks and mail them to him in California. He would then sell them online to American students at a substantial markup, but still much cheaper than the market price for the U.S. editions. In the course of a few years, he made (by conservative estimates) close to $37,000.