NOTICE: This opinion is subject to
formal revision before publication in the preliminary print of the
United States Reports. Readers are requested to notify the Reporter
of Decisions, Supreme Court of the United States, Washington,
D. C. 20543, of any typographical or other formal errors, in
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															SUPREME COURT OF THE UNITED STATES

															_________________

															No. 11–697

															_________________

															SUPAP KIRTSAENG, dba BLUECHRISTINE99,
PETITIONER v. JOHN WILEY & SONS, INC.

															on writ of certiorari to the united states
court of appeals for the second circuit

															[March 19, 2013]

															Justice Breyer delivered the opinion of the
Court.

															Section 106 of the Copyright Act grants “the
owner of copyright under this title” certain “exclusive rights,”
including the right “to distribute copies . . . of the
copyrighted work to the public by sale or other transfer of
ownership.” 17 U. S. C. §106(3). These rights are
qualified, however, by the application of various limitations set
forth in the next several sections of the Act, §§107 through 122.
Those sections, typically entitled “Limitations on exclusive
rights,” include, for example, the principle of “fair use” (§107),
permission for limited library archival reproduction, (§108), and
the doctrine at issue here, the “first sale” doctrine (§109).

															Section 109(a) sets forth the “first sale”
doctrine as follows:

															“Notwithstanding the provisions of section
106(3) [the section that grants the owner exclusive distribution
rights], the owner of a particular copy or phonorecord lawfully
made under this title . . . is entitled, without the
authority of the copyright owner, to sell or otherwise dispose of
the possession of that copy or phonorecord.” (Emphasis added.)

															Thus, even though §106(3) forbids distribution
of a copy of, say, the copyrighted novel Herzog without the
copyright owner’s permission, §109(a) adds that, once a copy of
Her- zog has been lawfully sold (or its ownership otherwise
lawfully transferred), the buyer of that copy and
subsequent owners are free to dispose of it as they wish. In
copyright jargon, the “first sale” has “exhausted” the copyright
owner’s §106(3) exclusive distribution right.

															What, however, if the copy of Herzog was printed
abroad and then initially sold with the copyright owner’s
permission? Does the “first sale” doctrine still apply? Is the
buyer, like the buyer of a domestically manufactured copy, free to
bring the copy into the United States and dispose of it as he or
she wishes?

															To put the matter technically, an “importation”
provision, §602(a)(1), says that

															“[i]mportation into the United States,
without the authority of the owner of copyright under this
title , of copies . . . of a work that have been
acquired outside the United States is an infringement of the
exclusive right to distribute copies . . . under
section 106 . . . .” 17 U. S. C.
§602(a)(1) (2006 ed., Supp. V) (emphasis added).

															Thus §602(a)(1) makes clear that importing a
copy without permission violates the owner’s exclusive distri-
bution right. But in doing so, §602(a)(1) refers explicitly to the §106(3) exclusive distribution right. As we have just said,
§106 is by its terms “[s]ubject to” the various doctrines and
principles contained in §§107 through 122, in- cluding §109(a)’s
“first sale” limitation. Do those same modifications apply—in
particular, does the “first sale” modification apply—when
considering whether §602(a)(1) prohibits importing a copy?

															In Quality King Distributors, Inc. v. L’anza Research Int’l, Inc., 523 U.S.
135 , 145 (1998), we held that §602(a)(1)’s reference to
§106(3)’s exclusive distribution right incorporates the later
subsections’ limitations, including, in particular, the “first
sale” doctrine of §109. Thus, it might seem that, §602(a)(1)
notwithstanding, one who buys a copy abroad can freely import that
copy into the United States and dispose of it, just as he could had
he bought the copy in the United States.

															But Quality King considered an instance
in which the copy, though purchased abroad, was initially
manufactured in the United States (and then sent abroad and sold).
This case is like Quality King but for one important fact.
The copies at issue here were manufactured abroad. That fact is
important because §109(a) says that the “first sale” doctrine
applies to “a particular copy or phonorecord lawfully made under
this title .” And we must decide here whether the five words,
“lawfully made under this title,” make a critical legal
difference.

															Putting section numbers to the side, we ask
whether the “first sale” doctrine applies to protect a buyer or
other lawful owner of a copy (of a copyrighted work) lawfully
manufactured abroad. Can that buyer bring that copy into the United
States (and sell it or give it away) without obtaining permission
to do so from the copyright owner? Can, for example, someone who
purchases, say at a used bookstore, a book printed abroad
subsequently resell it without the copyright owner’s
permission?

															In our view, the answers to these questions are,
yes. We hold that the “first sale” doctrine applies to copies of a
copyrighted work lawfully made abroad.

															I

															A

															Respondent, John Wiley & Sons, Inc.,
publishes aca- demic textbooks. Wiley obtains from its authors
various foreign and domestic copyright assignments, licenses and
permissions—to the point that we can, for present pur- poses, refer
to Wiley as the relevant American copyright owner. See 654 F.3d
210, 213, n. 6 (CA2 2011). Wiley often assigns to its wholly
owned foreign subsidiary, John Wiley & Sons (Asia) Pte Ltd.,
rights to publish, print, and sell Wiley’s English language
textbooks abroad. App. to Pet. for Cert. 47a–48a. Each copy of a
Wiley Asia foreign edition will likely contain language making
clear that the copy is to be sold only in a particular country or
geographical region outside the United States. 654 F. 3d, at
213.

															For example, a copy of Wiley’s American edition
says, “Copyright © 2008 John Wiley & Sons, Inc. All rights
reserved. . . . Printed in the United States of America.”
J. Walker, Fundamentals of Physics, p. vi (8th ed. 2008). A copy of
Wiley Asia’s Asian edition of that book says:

															“Copyright © 2008 John Wiley & Sons
(Asia) Pte Ltd[.] All rights reserved. This book is authorized for
sale in Europe, Asia, Africa, and the Middle East only and may be
not exported out of these territories. Exportation from or
importation of this book to another region without the Publisher’s
authorization is illegal and is a violation of the Publisher’s
rights. The Publisher may take legal action to enforce its
rights. . . . Printed in Asia.” J. Walker,
Fundamentals of Physics, p. vi (8th ed. 2008 Wiley Int’l Student
ed.).

															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.”
Compare, e.g., ibid. (Int’l ed.), with Walker, supra, at vi (American ed.).

															The upshot is that there are two essentially
equivalent versions of a Wiley textbook, 654 F. 3d, at 213,
each version manufactured and sold with Wiley’s permission: (1) an
American version printed and sold in the United States, and (2) a
foreign version manufactured and sold abroad. And Wiley makes
certain that copies of the second version state that they are not
to be taken (without permission) into the United States. Ibid. Petitioner, Supap Kirtsaeng, a citizen of
Thailand, moved to the United States in 1997 to study mathemat- ics
at Cornell University. Ibid. He paid for his educa- tion
with the help of a Thai Government scholarship which required him
to teach in Thailand for 10 years on his return. Brief for
Petitioner 7. Kirtsaeng 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. Ibid. While he was
studying in the United States, Kirtsaeng asked his friends and
family in Thailand to buy copies of foreign edition
English-language textbooks at Thai book shops, where they sold at
low prices, and mail them to him in the United States. Id., at 7–8. Kirtsaeng would then sell them, reimburse his family and
friends, and keep the profit. App. to Pet. for Cert. 48a–49a.

															B

															In 2008 Wiley brought this federal lawsuit
against Kirtsaeng for copyright infringement. 654 F. 3d, at
213. Wiley claimed that Kirtsaeng’s unauthorized importation of its
books and his later resale of those books amounted to an
infringement of Wiley’s §106(3) exclusive right to dis- tribute as
well as §602’s related import prohibition. 17 U. S. C.
§§106(3) (2006 ed.), 602(a) (2006 ed., Supp. V). See also §501
(2006 ed.) (authorizing infringement action). App. 204–211.
Kirtsaeng replied that the books he had acquired were
“ ‘lawfully made’ ” and that he had acquired them
legitimately. Record in No. 1:08–CV–7834–DCP (SDNY), Doc. 14,
p. 3. Thus, in his view, §109(a)’s “first sale” doctrine
permitted him to resell or otherwise dispose of the books without
the copyright owner’s further permission. Id. , at 2–3.

															The District Court held that Kirtsaeng could not
assert the “first sale” defense because, in its view, that doctrine
does not apply to “foreign-manufactured goods” (even if made abroad
with the copyright owner’s permission). App. to Pet. for Cert. 72a.
The jury then found that Kirtsaeng had willfully infringed Wiley’s
American copyrights by selling and importing without authorization
copies of eight of Wiley’s copyrighted titles. And it assessed
statutory damages of $600,000 ($75,000 per work). 654 F. 3d,
at 215.

															On appeal, a split panel of the Second Circuit
agreed with the District Court. Id., at 222. It pointed out
that §109(a)’s “first sale” doctrine applies only to “the owner of
a particular copy . . . lawfully made under this
title. ” Id., at 218–219 (emphasis added). And, in the
majority’s view, this language means that the “first sale” doctrine
does not apply to copies of American copyrighted works manufactured
abroad. Id., at 221. A dissenting judge thought that the
words “lawfully made under this title” do not refer “to a place of
manufacture” but rather “focu[s] on whether a particular copy was
manufactured lawfully under” Amer- ica’s copyright statute, and
that “the lawfulness of the manufacture of a particular copy should
be judged by U. S. copyright law.” Id. , at 226 (opinion
of Murtha, J.).

															We granted Kirtsaeng’s petition for certiorari
to con- sider this question in light of different views among the
Circuits. Compare id., at 221 (case below) (“first sale”
doctrine does not apply to copies manufactured outside the United
States), with Omega S. A. v. Costco Wholesale Corp. ,
541 F.3d 982, 986 (CA9 2008) (“first sale” doctrine applies to
copies manufactured outside the United States only if an authorized
first sale occurs within the United States), aff’d by an equally
divided court, 562 U. S. ___ (2010), and Sebastian Int’l,
Inc. v. Consumer Contacts (PTY) Ltd. , 847 F.2d 1093,
1098, n. 1 (CA3 1988) (limitation of the first sale doctrine
to copies made within the United States “does not fit comfortably
within the scheme of the Copyright Act”).

															II

															We must decide whether the words “lawfully
made under this title” restrict the scope of §109(a)’s “first sale”
doctrine geographically. The Second Circuit, the Ninth Circuit,
Wiley, and the Solicitor General (as amicus ) all read those
words as imposing a form of geographical limitation. The
Second Circuit held that they limit the “first sale” doctrine to
particular copies “made in territories in which the Copyright
Act is law ,” which (the Circuit says) are copies “manufactured
domestically,” not “outside of the United States.” 654 F. 3d,
at 221–222 (emphasis added). Wiley agrees that those five words
limit the “first sale” doctrine “to copies made in conformance with
the [United States] Copyright Act where the Copyright Act is
appli - cable ,” which (Wiley says) means it does not
apply to copies made “outside the United States” and at least not
to “foreign production of a copy for distribution exclusively
abroad.” Brief for Respondent 15–16. Similarly, the Solicitor
General says that those five words limit the “first sale”
doctrine’s applicability to copies “ ‘ made subject to and in compliance with [the Copyright Act],’ ” which (the
Solicitor General says) are copies “made in the United States.”
Brief for United States as Amicus Curiae 5 (hereinafter
Brief for United States) (emphasis added). And the Ninth Circuit
has held that those words limit the “first sale” doctrine’s
applicability (1) to copies lawfully made in the United States, and
(2) to copies lawfully made outside the United States but initially
sold in the United States with the copyright owner’s permission. Denbicare U. S. A. Inc. v. Toys “R” Us,
Inc. , 84
F.3d 1143 , 1149–1150 (1996).

															Under any of these geographical interpretations,
§109(a)’s “first sale” doctrine would not apply to the Wiley Asia
books at issue here. And, despite an American copyright owner’s
permission to make copies abroad, one who buys a copy
of any such book or other copyrighted work—whether at a retail
store, over the Internet, or at a library sale—could not resell (or
otherwise dispose of) that particular copy without further
permission.

															Kirtsaeng, however, reads the words “lawfully
made under this title” as imposing a non- geographical
limitation. He says that they mean made “in accordance with” or “in
compliance with” the Copyright Act. Brief for Petitioner 26. In
that case, §109(a)’s “first sale” doctrine would apply to
copyrighted works as long as their manufacture met the requirements
of American copyright law. In particular, the doctrine would apply
where, as here, copies are manufactured abroad with the permission
of the copyright owner. See §106 (referring to the owner’s right to
authorize).

															In our view, §109(a)’s language, its context,
and the common-law history of the “first sale” doctrine, taken
together, favor a non -geographical interpretation. We also
doubt that Congress would have intended to create the practical
copyright-related harms with which a geographical interpretation
would threaten ordinary scholarly, artistic, commercial, and
consumer activities. See Part II–D, infra . We consequently
conclude that Kirtsaeng’s nongeographical reading is the better
reading of the Act.

															A

															The language of §109(a) read literally favors
Kirtsaeng’s nongeographical interpretation, namely, that “lawfully
made under this title” means made “in accordance with” or “in
compliance with” the Copyright Act. The language of §109(a) says
nothing about geography. The word “under” can mean “[i]n accordance
with.” 18 Oxford English Dictionary 950 (2d ed. 1989). See also
Black’s Law Dictionary 1525 (6th ed. 1990) (“according to”). And a
nongeographical interpretation provides each word of the five-word
phrase with a distinct purpose. The first two words of the phrase,
“lawfully made,” suggest an effort to distinguish those copies that
were made lawfully from those that were not, and the last three
words, “under this title,” set forth the standard of
“lawful[ness].” Thus, the nongeograph- ical reading is simple, it
promotes a traditional copyright objective (combatting piracy), and
it makes word-by-word linguistic sense.

															The geographical interpretation, however,
bristles with linguistic difficulties. It gives the word “lawfully”
little, if any, linguistic work to do. (How could a book be un lawfully “made under this title”?) It imports geography
into a statutory provision that says nothing explicitly about it.
And it is far more complex than may at first appear.

															To read the clause geographically, Wiley, like
the Sec- ond Circuit and the Solicitor General, must first
emphasize the word “under.” Indeed, Wiley reads “under this title”
to mean “in conformance with the Copyright Act where the
Copyright Act is applicable .” Brief for Respondent 15. Wiley
must then take a second step, arguing that the Act “ is
applicable” only in the United States. Ibid. And the
Solicitor General must do the same. See Brief for United States 6
(“A copy is ‘ lawfully made under this title’ if Title 17
governs the copy’s creation and the copy is made in
compliance with Title 17’s requirements”). See also post, at
7 (Ginsburg, J., dissenting) (“under” describes something “governed
or regulated by another”).

															One difficulty is that neither “under” nor any
other word in the phrase means “where.” See, e.g. , 18 Oxford
English Dictionary, supra, at 947–952 (definition of
“under”). It might mean “subject to,” see post , at 6, but as
this Court has repeatedly acknowledged, the word evades a uniform,
consistent meaning. See Kucana v. Holder , 558 U.S.
233 , 245 (2010) (“ ‘under’ is chameleon”); Ardestani v. INS , 502 U.S.
129 , 135 (1991) (“under” has “many dictionary definitions” and
“must draw its meaning from its context”).

															A far more serious difficulty arises out of the
uncer- tainty and complexity surrounding the second step’s effort
to read the necessary geographical limitation into the word
“applicable” (or the equivalent). Where, precisely, is the
Copyright Act “applicable”? The Act does not instantly protect an American copyright holder from unauthorized
piracy taking place abroad. But that fact does not mean the Act is inapplicable to copies made abroad. As a matter of ordinary
English, one can say that a statute imposing, say, a tariff upon
“any rhododendron grown in Nepal” applies to all Nepalese
rhododendrons. And, similarly, one can say that the American
Copyright Act is applicable to all pirated copies,
including those printed overseas. Indeed, the Act itself makes
clear that (in the Solicitor General’s language) foreign-printed
pirated copies are “sub- ject to” the Act. §602(a)(2) (2006 ed.,
Supp. V) (refer- ring to importation of copies “the making of which
either constituted an infringement of copyright, or which would
have constituted an infringement of copyright if this title had
been applicable”); Brief for United States 5. See also post, at 6 (suggesting that “made under” may be read as “subject
to”).

															The appropriateness of this linguistic usage is
underscored by the fact that §104 of the Act itself says that works
“ subject to protection under this title ” include unpublished
works “without regard to the nationality or domicile of the
author,” and works “first published” in any one of the nearly 180
nations that have signed a copyright treaty with the United States.
§§104(a), (b) (2006 ed.) (emphasis added); §101 (2006 ed., Supp. V)
(defining “treaty party”); U. S. Copyright Office, Circular
No. 38A, International Copyright Relations of the United States
(2010). Thus, ordinary English permits us to say that the Act
“applies” to an Irish manuscript lying in its author’s Dublin desk
drawer as well as to an original recording of a ballet performance
first made in Japan and now on display in a Kyoto art gallery. Cf.
4 M. Nimmer & D. Nimmer, Copyright §17.02, pp. 17–18, 17–19
(2012) (herein- after Nimmer on Copyright) (noting that the
principle that “copyright laws do not have any extraterritorial
operation” “requires some qualification”).

															The Ninth Circuit’s geographical interpretation
pro- duces still greater linguistic difficulty. As we said, that
Cir- cuit interprets the “first sale” doctrine to cover both (1)
copies manufactured in the United States and (2) copies
manufactured abroad but first sold in the United States with the
American copyright owner’s permission. Den - bicare
U. S. A. , 84 F. 3d, at 1149–1150. See also Brief
for Respondent 16 (suggesting that the clause at least excludes “the foreign production of a copy for distribution
exclusively abroad”); id., at 51 (the Court need “not de-
cide whether the copyright owner would be able to restrict further
distribution” in the case of “a downstream domestic purchaser of authorized imports”); Brief for Petitioner in Costco
Wholesale Corp. v. Omega, S. A. , O. T. 2010,
No. 08–1423, p. 12 (excepting imported copies “made by unrelated
foreign copyright holders” (emphasis deleted)).

															We can understand why the Ninth Circuit may have
thought it necessary to add the second part of its definition. As
we shall later describe, see Part II–D, infra , without some
such qualification a copyright holder could prevent a buyer from
domestically reselling or even giving away copies of a video game
made in Japan, a film made in Germany, or a dress (with a design
copyright) made in China, even if the copyright holder has
granted permission for the foreign manufacture, importation, and an
initial domestic sale of the copy. A publisher such as Wiley would
be free to print its books abroad, allow their im- portation and
sale within the United States, but prohibit students from later
selling their used texts at a campus bookstore. We see no way,
however, to reconcile this half-geographical/half-nongeographical
interpretation with the language of the phrase, “lawfully made
under this title.” As a matter of English, it would seem that those
five words either do cover copies lawfully made abroad or they do
not.

															In sum, we believe that geographical
interpretations create more linguistic problems than they resolve.
And considerations of simplicity and coherence tip the purely
linguistic balance in Kirtsaeng’s, nongeographical, favor.

															B

															Both historical and contemporary statutory
context in- dicate that Congress, when writing the present version
of §109(a), did not have geography in mind. In respect to history,
we compare §109(a)’s present language with the language of its
immediate predecessor. That predecessor said:

															“[N]othing in this Act shall be deemed to
forbid, prevent, or restrict the transfer of any copy of a
copyrighted work the possession of which has been lawfully
obtained. ” Copyright Act of 1909, §41, 35Stat. 1084 (emphasis
added).

															See also Copyright Act of 1947, §27, 61Stat.
660. The predecessor says nothing about geography (and Wiley does
not argue that it does). So we ask whether Congress, in changing
its language implicitly introduced a geograph- ical
limitation that previously was lacking. See also Part II–C, infra (discussing 1909 codification of common-law
principle).

															A comparison of language indicates that it did
not. The predecessor says that the “first sale” doctrine protects
“the transfer of any copy the possession of which has been
lawfully obtained .” The present version says that “ the
owner of a particular copy or phonorecord lawfully made under
this title is entitled to sell or otherwise dispose of the
possession of that copy or phonorecord.” What does this change in
language accomplish?

															The language of the former version referred to
those who are not owners of a copy, but mere possessors who
“lawfully obtained” a copy. The present version covers only those
who are owners of a “lawfully made” copy. Whom does the
change leave out? Who might have law- fully obtained a copy
of a copyrighted work but not owned that copy? One answer is
owners of movie theaters, who during the 1970’s (and before) often leased films from movie distributors or filmmakers. See S.
Donahue, American Film Distribution 134, 177 (1987) (describing
producer-distributer and distributer-exhibitor agreements); Note,
The Relationship Between Motion Picture Distribution and
Exhibition: An Analysis of the Effects of Anti-Blind Bidding
Legislation, 9 Comm/Ent. L. J. 131, 135 (1986). Because the
theater owners had “lawfully obtained” their copies, the earlier
version could be read as allowing them to sell that copy, i.e. , it might have given them “first sale” protection.
Because the theater owners were lessees, not owners, of their
copies, the change in language makes clear that they (like bailees
and other lessees) cannot take advantage of the “first sale”
doctrine. (Those who find legislative history useful will find
confirmation in, e.g. , House Committee on the Judiciary,
Copyright Law Revision, Supplementary Report of the Register of
Copyrights on the General Revision of the U. S. Copyright Law:
1965 Revision Bill, 89th Cong., 1st Sess., pt. 6, p. 30 (Comm.
Print 1965) (hereinafter Copyright Law Revision) (“[W]here a person
has rented a print of a motion picture from the copyright owner, he
would have no right to lend, rent, sell, or otherwise dispose of
the print without first obtaining the copyright owner’s
permission”). See also Platt & Munk Co. v. Republic
Graphics, Inc. , 315 F.2d 847, 851 (CA2 1963) (Friendly, J.)
(pointing out predecessor statute’s leasing problem)).

															This objective perfectly well explains the new
language of the present version, including the five words here at
issue. Section 109(a) now makes clear that a lessee of a copy will not receive “first sale” protection but one who owns a copy will receive “first sale” protection, provided, of course, that the copy was “lawfully
made ” and not pi- rated. The new language also takes into
account that a copy may be “lawfully made under this title” when
the copy, say of a phonorecord, comes into its owner’s possession
through use of a compulsory license, which “this title” provides
for elsewhere, namely, in §115. Again, for those who find
legislative history useful, the relevant legislative report makes
this clear. H. R. Rep. No. 94–1476, p. 79 (1976) (“For
example, any resale of an illegally ‘pirated’ phonorecord would be
an infringement, but the disposition of a phonorecord legally made
under the compulsory licensing provisions of section 115 would
not”).

															Other provisions of the present statute also
support a nongeographical interpretation. For one thing, the stat-
ute phases out the “manufacturing clause,” a clause that appeared
in earlier statutes and had limited importation of many copies (of
copyrighted works) printed outside the United States. §601, 90Stat.
2588 (“Prior to July 1, 1982 . . . the importation into
or public distribution in the United States of copies of a work
consisting preponderantly of nondramatic literary material
. . . is prohibited unless the portions consisting of
such material have been manufac- tured in the United States or
Canada”). The phasing out of this clause sought to equalize
treatment of copies manufactured in America and copies manufactured
abroad. See H. R. Rep. No. 94–1476, at 165–166.

															The “equal treatment” principle, however, is
difficult to square with a geographical interpretation of the
“first sale” clause that would grant the holder of an American
copyright (perhaps a foreign national, see supra, at 10)
permanent control over the American distribution chain (sales,
resales, gifts, and other distribution) in respect to copies
printed abroad but not in respect to copies printed in America. And
it is particularly difficult to believe that Congress would have
sought this unequal treatment while saying nothing about it and
while, in a related clause (the manufacturing phase-out), seeking
the opposite kind of policy goal. Cf. Golan v. Holder , 565 U. S. ___, ___ (2012) (slip op., at 30)
(Congress has moved from a copyright regime that, prior to 1891,
entirely excluded foreign works from U. S. copyright
protection to a regime that now “ensure[s] that most works, whether
foreign or domestic, would be governed by the same legal
regime ” (emphasis added)).

															Finally, we normally presume that the words
“lawfully made under this title” carry the same meaning when they
appear in different but related sections. Department of Revenue
of Ore. v. ACF Industries, Inc. , 510
U.S. 332 , 342 (1994). But doing so here produces surprising
consequences. Consider:

															(1) Section 109(c) says that, despite the
copyright owner’s exclusive right “to display” a copyrighted work
(provided in §106(5)), the owner of a particular copy “law- fully
made under this title” may publicly display it without further
authorization. To interpret these words geographically would mean
that one who buys a copyrighted work of art, a poster, or even a
bumper sticker, in Canada, in Europe, in Asia, could not display it
in America without the copyright owner’s further authorization.

															(2) Section 109(e) specifically provides that
the owner of a particular copy of a copyrighted video arcade game
“lawfully made under this title” may “publicly perform or display
that game in coin-operated equipment” without the authorization of
the copyright owner. To interpret these words geographically means
that an arcade owner could not (“without the authority of the
copyright owner”) perform or display arcade games (whether new or
used) originally made in Japan. Cf. Red Baron-Franklin Park,
Inc. v. Taito Corp. , 883 F.2d 275 (CA4 1989).

															(3) Section 110(1) says that a teacher, without
the copyright owner’s authorization, is allowed to perform or
display a copyrighted work (say, an audiovisual work) “in the
course of face-to-face teaching activities”—unless the teacher
knowingly used “a copy that was not law- fully made under this
title.” To interpret these words geographically would mean that the
teacher could not (without further authorization) use a copy of a
film during class if the copy was lawfully made in Canada, Mexico,
Europe, Africa, or Asia.

															(4) In its introductory sentence, §106 provides
the Act’s basic exclusive rights to an “owner of a copyright under
this title.” The last three words cannot support a geographic
interpretation.

															Wiley basically accepts the first three
readings, but ar- gues that Congress intended the restrictive
consequences. And it argues that context simply requires that the
words of the fourth example receive a different interpretation.
Leaving the fourth example to the side, we shall explain in Part
II–D, infra, why we find it unlikely that Congress would
have intended these, and other related consequences . C

															A relevant canon of statutory interpretation
favors a nongeographical reading. “[W]hen a statute covers an is-
sue previously governed by the common law,” we must pre- sume that
“Congress intended to retain the substance of the common law.” Samantar v. Yousuf , 560 U. S. ___, ___,
n. 13 (2010) (slip op., at 14, n. 13). See also Isbrandtsen Co. v. Johnson , 343
U.S. 779 , 783 (1952) (“Statutes which invade the common law
. . . are to be read with a presumption favoring the
retention of long-established and familiar principles, except when
a statu- tory purpose to the contrary is evident”).

															The “first sale” doctrine is a common-law
doctrine with an impeccable historic pedigree. In the early 17th
century Lord Coke explained the common law’s refusal to permit
restraints on the alienation of chattels. Referring to Littleton,
who wrote in the 15th century, Gray, Two Contributions to Coke
Studies, 72 U. Chi. L. Rev. 1127, 1135 (2005), Lord Coke
wrote:

															“[If] a man be possessed of
. . . a horse, or of any other chattell . . .
and give or sell his whole interest . . . therein upon
condition that the Donee or Vendee shall not alien[ate] the same,
the [condition] is voi[d], because his whole interest
. . . is out of him, so as he hath no possibilit[y] of a
Reverter, and it is against Trade and Traffi[c], and bargaining and
contracting betwee[n] man and man: and it is within the reason of
our Author that it should ouster him of all power given to him.” 1
E. Coke, Institutes of the Laws of England §360, p. 223 (1628).

															A law that permits a copyright holder to control
the resale or other disposition of a chattel once sold is simi-
larly “against Trade and Traffi[c], and bargaining and con-
tracting.” Ibid. With these last few words, Coke emphasizes the
importance of leaving buyers of goods free to compete with each
other when reselling or otherwise disposing of those goods.
American law too has generally thought that competition, including
freedom to resell, can work to the advantage of the consumer. See, e.g. , Leegin Creative Leather Products, Inc. v. PSKS, Inc. , 551 U.S.
877 , 886 (2007) (restraints with “manifestly anticompetitive
effects” are per se illegal; others are subject to the
rule of reason (internal quotation marks omitted)); 1 P. Areeda
& H. Hovenkamp, Antitrust Law ¶100, p. 4 (3d ed. 2006)
(“[T]he principal objective of antitrust policy is to maximize
consumer welfare by encouraging firms to behave
competitively”).

															The “first sale” doctrine also frees courts from
the administrative burden of trying to enforce restrictions upon
difficult-to-trace, readily movable goods. And it avoids the
selective enforcement inherent in any such effort. Thus, it is not
surprising that for at least a century the “first sale” doctrine
has played an important role in American copyright law. See Bobbs-Merrill Co. v. Straus , 210
U.S. 339 (1908); Copyright Act of 1909, §41, 35Stat. 1084. See
also Copyright Law Revision, Further Discussions and Comments on
Preliminary Draft for Revised U. S. Copyright Law, 88th Cong.,
2d Sess., pt. 4, p. 212 (Comm. Print 1964) (Irwin Karp of Authors’
League of America expressing concern for “the very basic concept of
copyright law that, once you’ve sold a copy legally, you can’t
restrict its resale”).

															The common-law doctrine makes no geographical
distinctions; nor can we find any in Bobbs-Merrill (where
this Court first applied the “first sale” doctrine) or in §109(a)’s
predecessor provision, which Congress enacted a year later. See supra, at 12. Rather, as the Solicitor General acknowledges,
“a straightforward application of Bobbs-Merrill ” would not
preclude the “first sale” defense from applying to authorized
copies made overseas. Brief for United States 27. And we can find
no language, context, purpose, or history that would rebut a
“straightforward application” of that doctrine here.

															The dissent argues that another principle of
statutory interpretation works against our reading, and points out
that elsewhere in the statute Congress used different words to
express something like the non-geographical reading we adopt. Post , at 8–9 (quoting §602(a)(2) (prohibiting the
importation of copies “the making of which either constituted an
infringement of copyright, or which would have constituted an
infringement of copyright if this title had been applicable”
(emphasis deleted))). Hence, Congress, the dissent believes, must
have meant §109(a)’s different language to mean something different
(such as the dissent’s own geographical interpretation of §109(a)).
We are not aware, however, of any canon of interpretation that
forbids interpreting different words used in different parts of the
same statute to mean roughly the same thing. Regardless, were there
such a canon, the dissent’s interpretation of §109(a) would also
violate it. That is because Congress elsewhere in the 1976 Act
included the words “manufactured in the United States or Canada,”
90Stat. 2588, which express just about the same geographical
thought that the dissent reads into §109(a)’s very different
language.

															D

															Associations of libraries, used-book dealers,
technology companies, consumer-goods retailers, and museums point
to various ways in which a geographical interpretation would fail
to further basic constitutional copyright objectives, in particular
“promot[ing] the Progress of Science and useful Arts.” U. S.
Const., Art. I, §8, cl. 8.

															The American Library Association tells us that
library collections contain at least 200 million books published
abroad (presumably, many were first published in one of the nearly
180 copyright-treaty nations and enjoy American copyright
protection under 17 U. S. C. §104, see supra , at
10); that many others were first published in the United States but
printed abroad because of lower costs; and that a geographical
interpretation will likely require the li- braries to obtain
permission (or at least create significant uncertainty) before
circulating or otherwise distributing these books. Brief for
American Library Association et al. as Amici Curiae 4,
15–20. Cf. id., at 16–20, 28 (discussing limitations of
potential defenses, including the fair use and archival exceptions,
§§107–108). See also Library and Book Trade Almanac 511 (D. Bogart
ed., 55th ed. 2010) (during 2000–2009 “a significant amount of book
printing moved to foreign nations”).

															How, the American Library Association asks, are
the libraries to obtain permission to distribute these millions of
books? How can they find, say, the copyright owner of a foreign
book, perhaps written decades ago? They may not know the copyright
holder’s present address. Brief for American Library Association 15
(many books lack indication of place of manufacture; “no practical
way to learn where [a] book was printed”). And, even where
addresses can be found, the costs of finding them, contacting
owners, and negotiating may be high indeed. Are the libraries to
stop circulating or distributing or displaying the millions of
books in their collections that were printed abroad?

															Used-book dealers tell us that, from the time
when Benjamin Franklin and Thomas Jefferson built commercial and
personal libraries of foreign books, American readers have bought
used books published and printed abroad. Brief for Powell’s Books
Inc. et al. as Amici Curiae 7 (citing M. Stern, Antiquarian
Bookselling in the United States (1985)). The dealers say that they
have “operat[ed] . . . for centuries” under the
assumption that the “first sale” doctrine applies. Brief for
Powell’s Books 7. But under a geographical interpretation a
contemporary tourist who buys, say, at Shakespeare and Co. (in
Paris), a dozen copies of a foreign book for American friends might
find that she had violated the copyright law. The used-book dealers
cannot easily predict what the foreign copyright holder may think
about a reader’s effort to sell a used copy of a novel. And they
believe that a geographical interpretation will injure a large
portion of the used-book business.

															Technology companies tell us that “automobiles,
microwaves, calculators, mobile phones, tablets, and personal
computers” contain copyrightable software programs or packaging.
Brief for Public Knowledge et al. as Amici Curiae 10.
See also Brief for Association of Service and Computer Dealers
International, Inc., et al. as Amici Curiae 2. Many of
these items are made abroad with the American copyright holder’s
permission and then sold and imported (with that permission) to the
United States. Brief for Retail Litigation Center, Inc.,
et al. as Amici Curiae 4. A geographical interpretation
would prevent the resale of, say, a car, without the permission of
the holder of each copyright on each piece of copyrighted
automobile software. Yet there is no reason to believe that foreign
auto manufacturers regularly obtain this kind of permission from
their software component suppliers, and Wiley did not indicate to
the contrary when asked. See Tr. of Oral Arg. 29–30. Without that
permission a foreign car owner could not sell his or her used
car.

															Retailers tell us that over $2.3 trillion worth
of for- eign goods were imported in 2011. Brief for Retail
Litigation Center 8. American retailers buy many of these goods
after a first sale abroad. Id. , at 12. And, many of these
items bear, carry, or contain copyrighted “packaging, logos,
labels, and product inserts and instructions for [the use of]
everyday packaged goods from floor cleaners and health and beauty
products to breakfast cereals.” Id., at 10–11. The retailers
add that American sales of more traditional copyrighted works,
“such as books, recorded music, motion pictures, and magazines”
likely amount to over $220 billion. Id., at 9. See also id., at 10 (electronic game industry is $16 billion). A
geographical interpretation would subject many, if not all, of them
to the disruptive impact of the threat of infringement suits. Id., at 12.

															Art museum directors ask us to consider their
efforts to display foreign-produced works by, say, Cy Twombly, René
Magritte, Henri Matisse, Pablo Picasso, and others. See supra , at 10 (describing how §104 often makes such works
“subject to” American copyright protection). A geographical
interpretation, they say, would require the museums to obtain
permission from the copyright owners before they could display the
work, see supra, at 15—even if the copyright owner has
already sold or donated the work to a foreign museum. Brief for
Association of Art Museum Directors et al. as Amici
Curiae 10–11. What are the museums to do, they ask, if the
artist retained the copyright, if the artist cannot be found, or if
a group of heirs is arguing about who owns which copyright? Id., at 14.

															These examples, and others previously mentioned,
help explain why Lord Coke considered the “first sale”
doctrine necessary to protect “Trade and Traffi[c], and bargaining
and contracting,” and they help explain why American
copyright law has long applied that doctrine. Cf. supra, at
17–18 . Neither Wiley nor any of its many amici deny that a geographical interpretation could bring about these
“horribles”—at least in principle. Rather, Wiley essentially says
that the list is artificially invented. Brief for Respondent 51–52.
It points out that a federal court first adopted a geographical
interpretation more than 30 years ago. CBS, Inc. v. Scorpio Music Distributors, Inc. , 569 F. Supp. 47 , 49 (ED Pa. 1983), summarily aff’d, 738 F.2d
424 (CA3 1984) (table). Yet, it adds, these problems have not
occurred. Why not? Because, says Wiley, the problems and threats
are purely theoretical; they are unlikely to reflect reality. See
also post , at 30–31.

															We are less sanguine. For one thing, the law has
not been settled for long in Wiley’s favor. The Second Circuit, in
its decision below, is the first Court of Appeals to adopt a purely
geographical interpretation. The Third Circuit has favored a
nongeographical interpretation. Sebastian Int’l, 847 F.2d
1093. The Ninth Circuit has favored a modified geographical
interpretation with a nongeographical (but textually unsustainable)
corollary designed to diminish the problem. Denbicare U. S.
A., 84 F.3d 1143 . See supra, at 11–12. And other courts have
hesitated to adopt, and have cast doubt upon, the validity of the
geographical interpretation. Pearson Educ., Inc. v. Liu , 656 F. Supp. 2d 407 (SDNY 2009); Red-Baron Franklin
Park, Inc. v. Taito Corp. , No. 88–0156–A, 1988 WL
167344, *3 (ED Va. 1988), rev’d on other grounds, 883 F.2d 275 (CA4
1989).

															For another thing, reliance upon the “first
sale” doctrine is deeply embedded in the practices of those, such
as book- sellers, libraries, museums, and retailers, who have long
relied upon its protection. Museums, for example, are not in the
habit of asking their foreign counterparts to check with the heirs
of copyright owners before sending, e.g. , a Picasso on tour.
Brief for Association of Art Mu- seum Directors 11–12. That inertia
means a dramatic change is likely necessary before these
institutions, instructed by their counsel, would begin to engage in
the complex permission-verifying process that a geographical
interpretation would demand. And this Court’s adoption of the
geographical interpretation could provide that dramatic change.
These intolerable consequences (along with the absurd result that
the copyright owner can ex- ercise downstream control even when it
authorized the import or first sale) have understandably led the
Ninth Circuit, the Solicitor General as amicus , and the
dissent to adopt textual readings of the statute that attempt to
mitigate these harms. Brief for United States 27–28; post ,
at 24–28. But those readings are not defensible, for they require
too many unprecedented jumps over linguistic and other hurdles that
in our view are insurmountable. See, e.g. , post , at
26 (acknowledging that its reading of §106(3) “significantly
curtails the independent effect of §109(a)”).

															Finally, the fact that harm has proved limited
so far may simply reflect the reluctance of copyright holders so
far to assert geographically based resale rights. They may decide
differently if the law is clarified in their favor. Regardless, a
copyright law that can work in practice only if unenforced is not a
sound copyright law. It is a law that would create uncertainty,
would bring about selective enforcement, and, if widely unenforced,
would breed disrespect for copyright law itself.

															Thus, we believe that the practical problems
that petitioner and his amici have described are too
serious, too extensive, and too likely to come about for us to
dismiss them as insignificant—particularly in light of the
ever-growing importance of foreign trade to America. See The World
Bank, Imports of goods and services (% of GDP) (imports in 2011 18%
of U. S. gross domestic product compared to 11% in 1980),
online at http:// data.worldbank.org/indicator/NE.IMP.GNFS.ZS? (as
visited Mar. 15, 2013, and available in Clerk of Court’s case
file). The upshot is that copyright-related consequences along with
language, context, and interpretive canons argue strongly against a
geographical interpretation of §109(a).

															III

															Wiley and the dissent make several additional
impor- tant arguments in favor of the geographical interpretation. First , they say that our Quality King decision
strongly supports its geographical interpretation. In that case we
asked whether the Act’s “importation provision,” now §602(a)(1)
(then §602(a)), barred importation (without permission) of a
copyrighted item (labels affixed to hair care products) where an
American copyright owner authorized the first sale and export of
hair care products with copyrighted labels made in the United
States, and where a buyer sought to import them back into the
United States without the copyright owner’s permission. 523
U. S., at 138–139.

															We held that the importation provision did not prohibit sending the products back into the United
States (without the copyright owner’s permission). That section
says:

															“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 phono-records under section 106 .” 17
U. S. C. §602(a)(1) (2006 ed., Supp. V) (emphasis added).
See also §602(a) (1994 ed.).

															We pointed out that this section makes
importation an infringement of the “exclusive right to distribute
. . . under 106 .” We noted that §109(a)’s “first
sale” doctrine limits the scope of the §106 exclusive distribution
right. We took as given the fact that the products at issue had at
least once been sold. And we held that consequently, importation of
the copyrighted labels does not violate §602(a)(1). 523 U. S.,
at 145.

															In reaching this conclusion we endorsed Bobbs-Merrill and its statement that the copyright laws were
not “intended to create a right which would permit the holder of
the copyright to fasten, by notice in a book . . . a
restriction upon the subsequent alienation of the subject-matter of
copyright after the owner had parted with the title to one who had
acquired full dominion over it.” 210 U. S., at 349–350.

															We also explained why we rejected the claim that
our interpretation would make §602(a)(1) pointless. Those advancing
that claim had pointed out that the 1976 Copyright Act amendments
retained a prior anti-piracy provision, prohibiting the importation
of pirated copies. Qual - ity King, supra , at 146. Thus, they said, §602(a)(1) must prohibit the
importation of lawfully made copies, for to allow the importation
of those lawfully made copies after a first sale, as Quality King’ s holding would do, would leave §602(a)(1)
without much to prohibit. It would become superfluous, without any
real work to do.

															We do not believe that this argument is a strong
one. Under Quality King ’s interpretation, §602(a)(1) would
still forbid importing (without permission, and subject to the
exceptions in §602(a)(3)) copies lawfully made abroad, for example,
where (1) a foreign publisher operating as the licensee of an
American publisher prints copies of a book overseas but, prior to
any authorized sale, seeks to send them to the United States; (2) a
foreign printer or other manufacturer (if not the “owner” for
purposes of §109(a), e.g., before an authorized sale) sought
to send copyrighted goods to the United States; (3) “a book
publisher transports copies to a wholesaler” and the wholesaler
(not yet the owner) sends them to the United States, see Copyright
Law Revision, pt. 4, at 211 (giving this example); or (4) a foreign
film distributor, having leased films for distri- bution, or any
other licensee, consignee, or bailee sought to send them to the
United States. See, e.g., 2 Nimmer on Copyright
§8.12[B][1][a], at 8–159 (“Section 109(a) provides that the
distribution right may be exercised solely with respect to the
initial disposition of copies of a work, not to prevent or restrict
the resale or other further transfer of possession of such
copies”). These examples show that §602(a)(1) retains significance.
We concede it has less significance than the dissent believes
appropriate, but the dissent also adopts a construction of §106(3)
that “significantly curtails” §109(a)’s effect, post , at 26,
and so limits the scope of that provision to a similar, or even
greater, degree.

															In Quality King we rejected the
“superfluous” argument for similar reasons. But, when rejecting it,
we said that, where an author gives exclusive American distribution
rights to an American publisher and exclusive British distribution
rights to a British publisher, “presumably only those [copies]
made by the publisher of the United States edition would be
‘lawfully made under this title’ within the meaning of
§109(a).” 523 U. S., at 148 (emphasis added). Wiley now argues
that this phrase in the Quality King opinion means that
books published abroad (under license) must fall outside the words
“lawfully made under this title” and that we have consequently
already given those words the geographical interpretation that it
favors.

															We cannot, however, give the Quality King statement the legal weight for which Wiley argues. The language
“lawfully made under this title” was not at issue in Qual - ity King ; the point before us now was not then fully argued;
we did not canvas the considerations we have here set forth; we
there said nothing to suggest that the example assumes a “first
sale”; and we there hedged our state- ment with the word
“presumably.” Most importantly, the statement is pure dictum. It is
dictum contained in a rebuttal to a counterargument. And it is unnecessary dictum even in that respect. Is the Court having
once written dicta calling a tomato a vegetable bound to deny that
it is a fruit forever after?

															To the contrary, we have written that we are not
necessarily bound by dicta should more complete argument
demonstrate that the dicta is not correct. Central Va. Community
College v. Katz , 546 U.S.
356 , 363 (2006) (“[W]e are not bound to follow our dicta in a
prior case in which the point now at issue was not fully debated”); Humphrey’s Executor v. United States , 295 U.S.
602 , 627–628 (1935) (rejecting, under stare decisis ,
dicta, “which may be followed if sufficiently persuasive but which
are not controlling”). And, given the bit part that our Quality
King statement played in our Quality King decision, we
believe the view of stare decisis set forth in these
opinions applies to the matter now before us. Second , Wiley and the dissent argue (to
those who consider legislative history) that the Act’s legislative
history supports their interpretation. But the historical events to
which it points took place more than a decade before the enactment
of the Act and, at best, are inconclusive.

															During the 1960’s, representatives of book,
record, and film industries, meeting with the Register of
Copyrights to discuss copyright revision, complained about the
difficulty of dividing international markets. Copyright Law
Revision Discussion and Comments on Report of the Register of
Copyrights on the General Revision of the U. S. Copyright Law,
88th Cong., 1st Sess., pt. 2, p. 212 (Comm. Print 1963) (English
editions of “particular” books “fin[d]” their “way into this
country”); id., at 213 (works “publi[shed] in a country
where there is no copyright protection of any sort” are put into
“the free stream of commerce” and “shipped to the United States”); ibid. (similar concern in respect to films).

															The then-Register of Copyrights, Abraham
Kaminstein, found these examples “very troubl[ing].” Ibid. And the Copyright Office released a draft provision that it said
“deals with the matter of the importation for distribution in the
United States of foreign copies that were made under proper
authority but that, if sold in the United States, would be sold in
contravention of the rights of the copyright owner who holds the
exclusive right to sell copies in the United States.” Id. ,
pt. 4, at 203. That draft version, without reference to §106,
simply forbids unauthorized imports. It said:

															“Importation into the United States of
copies or records of a work for the purpose of distribution to the
public shall, if such articles are imported without the authority
of the owner of the exclusive right to distrib- ute copies or
records under this title, constitute an infringement of copyright
actionable under section 35 [ 17 U. S. C. §501].” Id. , Preliminary Draft for Revised U. S. Copyright Law
and Discussions and Comments, 88th Cong., 2d Sess., pt. 3, pp.
32–33 (Comm. Print 1964).

															In discussing the draft, some of those present
expressed concern about its effect on the “first sale” doctrine.
For example, Irwin Karp, representing the Authors League of America
asked, “If a German jobber lawfully buys cop- ies from a German
publisher, are we not running into the problem of restricting his
transfer of his lawfully obtained copies?” Id. , pt. 4, at
211. The Copyright Office representative replied, “This could vary
from one situation to another, I guess. I should guess, for
example, that if a book publisher transports [ i.e., does not
sell] copies to a wholesaler [ i.e., a nonowner ], this
is not yet the kind of transaction that exhausts the right
to control disposition.” Ibid. (emphasis added).

															The Office later withdrew the draft, replacing
it with a draft, which, by explicitly referring to §106, was
similar to the provision that became law, now §602(a)(1). The
Office noted in a report that, under the new draft, importation of
a copy (without permission) “would violate the exclusive rights of
the U. S. copyright owner . . . where the copyright
owner had authorized the making of copies in a foreign country for
distribution only in that country.” Id. , pt. 6, at 150.

															Still, that part of the report says nothing
about the “first sale” doctrine, about §109(a), or about the five
words, “lawfully made under this title.” And neither the report nor
its accompanying 1960’s draft answers the question before us here.
Cf. Quality King , 523 U. S., at 145 (without those five
words, the import clause, via its reference to §106, imports the
“first sale” doctrine).

															But to ascertain the best reading of §109(a) , rather than dissecting the remarks of industry
representatives concerning §602 at congressional meetings held 10
years before the statute was enacted, see post, at 13–16, we
would give greater weight to the congressional report accompanying
§109(a), written a decade later when Congress passed the new law.
That report says:

															“Section 109(a) restates and confirms the
principle that, where the copyright owner has transferred
ownership of a particular copy or phonorecord of a work, the person
to whom the copy or phonorecord is transferred is entitled to
dispose of it by sale, rental, or any other means. Under this
principle, which has been established by the court decisions and
. . . the present law, the copyright owner’s exclusive
right of public distribution would have no effect upon anyone who
owns ‘a particular copy or phonorecord lawfully made under this
title’ and who wishes to transfer it to someone else or to destroy
it.

															.      .      .      .      .

															“To come within the scope of section
109(a), a copy or phonorecord must have been ‘lawfully made under
this title,’ though not necessarily with the copyright owner’s
authorization. For example, any resale of an illegally ‘pirated’
phonorecord would be an infringement but the disposition of a
phonorecord legally made under the compulsory licensing provisions
of section 115 would not.” H. R. Rep. No. 94–1476, at 79
(emphasis added).

															Accord, S. Rep. No. 94–473, pp. 71–72
(1975).

															This history reiterates the importance of the
“first sale” doctrine. See, e.g., Copyright Law Revision,
1964 Revision Bill with Discussions and Comments, 89th Cong., 1st
Sess., pt. 5, p. 66 (Comm. Print 1965) (“[F]ull ownership of a
lawfully-made copy authorizes its owner to dispose of it freely”).
It explains, as we have explained, the nongeographical purposes of
the words “lawfully made under this title.” Part II–B, supra . And it says nothing about geography. Nor,
importantly, did §109(a)’s predecessor provision. See supra, at 12. This means that, contrary to the dissent’s suggestion, any
lack of legislative history pertaining to the “first sale” doctrine
only tends to bolster our position that Congress’ 1976 revision did
not intend to create a drastic geographical change in its revision
to that provision. See post , at 18, n. 13. We consequently
believe that the legislative history, on balance, supports the non-
geographical interpretation. Third , Wiley and the dissent claim that a
nongeographical interpretation will make it difficult, perhaps
impos- sible, for publishers (and other copyright holders) to
divide foreign and domestic markets. We concede that is so. A
publisher may find it more difficult to charge different prices for
the same book in different geographic markets. But we do not see
how these facts help Wiley, for we can find no basic principle of
copyright law that suggests that publishers are especially entitled
to such rights.

															The Constitution describes the nature of
American copyright law by providing Congress with the power to
“secur[e]” to “[a]uthors” “for limited [t]imes” the “ exclusive
[r]ight to their . . . [w]ritings .” Art. I,
§8, cl. 8. The Founders, too, discussed the need to grant an author
a limited right to exclude competition. Compare Letter from Thomas
Jefferson to James Madison (July 31, 1788), in 13 Papers of Thomas
Jefferson 440, 442–443 (J. Boyd ed. 1956) (arguing against any
monopoly) with Letter from James Madison to Thomas Jefferson (Oct.
17, 1788), in 14 id., at 16, 21 (J. Boyd ed. 1958) (arguing
for a limited monopoly to secure production). But the
Constitution’s language nowhere suggests that its limited exclusive
right should include a right to divide markets or a concomitant
right to charge different purchasers different prices for the same
book, say to increase or to maximize gain. Neither, to our
knowledge, did any Founder make any such suggestion. We have found
no precedent suggesting a legal preference for interpretations of
copyright statutes that would provide for market divisions. Cf.
Copyright Law Revision, pt. 2, at 194 (statement of Barbara Ringer,
Copyright Office) (division of territorial markets was “primarily a
matter of private contract”).

															To the contrary, Congress enacted a copyright
law that (through the “first sale” doctrine) limits copyright
holders’ ability to divide domestic markets. And that limitation is
consistent with antitrust laws that ordinarily forbid market
divisions. Cf. Palmer v. BRG of Ga., Inc., 498 U.S.
46 , 49–50 (1990) ( per curiam ) (“[A]greements between
competitors to allocate territories to minimize competition are
illegal”). Whether copyright owners should, or should not, have
more than ordinary commercial power to divide international markets
is a matter for Congress to decide. We do no more here than try to
determine what decision Congress has taken. Fourth , the dissent and Wiley contend
that our decision launches United States copyright law into an
unprecedented regime of “international exhaustion.” Post , at
18–23; Brief for Respondent 45–46. But they point to nothing
indicative of congressional intent in 1976. The dissent also claims
that it is clear that the United States now opposes adopting such a
regime, but the Solicitor General as amicus has taken no
such position in this case. In fact, when pressed at oral argument,
the Solicitor General stated that the consequences of Wiley’s
reading of the statute (perpetual downstream control) were “worse”
than those of Kirtsaeng’s reading (restriction of market
segmentation). Tr. of Oral Arg. 51. And the dissent’s reliance on
the Solicitor General’s position in Quality King is under-
mined by his agreement in that case with our reading of §109(a).
Brief for United States as Amicus Curiae in Quality
King , O. T. 1996, No. 1470, p. 30 (“When . . .
Congress wishes to make the location of manufacture relevant to
Copyright Act protection, it does so expressly”); ibid. (calling it “distinctly unlikely” that Congress would have provided
an incentive for overseas manufacturing).

															Moreover, the exhaustion regime the dissent
apparently favors would provide that “the sale in one country of a
good” does not “exhaus[t] the intellectual-property owner’s right
to control the distribution of that good elsewhere.” Post ,
at 18–19. But our holding in Quality King that §109(a) is a
defense in U. S. courts even when “the first sale occurred
abroad,” 523 U. S., at 145, n. 14, has already
significantly eroded such a principle.

															IV

															For these reasons we conclude that the
considerations supporting Kirtsaeng’s nongeographical
interpretation of the words “lawfully made under this title” are
the more persuasive. The judgment of the Court of Appeals is
reversed, and the case is remanded for further proceedings
consistent with this opinion.

															It is so ordered. SUPREME COURT OF THE UNITED STATES

															_________________

															No. 11–697

															_________________

															SUPAP KIRTSAENG, dba BLUECHRISTINE99,
PETITIONER v. JOHN WILEY & SONS, INC.

															on writ of certiorari to the united states
court of appeals for the second circuit

															[March 19, 2013]

															Justice Kagan, with whom Justice Alito joins,
concurring.

															I concur fully in the Court’s opinion. Neither
the text nor the history of 17 U. S. C. §109(a) supports
removing first-sale protection from every copy of a protected work
manufactured abroad. See ante , at 8–16, 28–31. I recognize,
however, that the combination of today’s decision and Quality
King Distributors, Inc. v. L’anza Research Int’l, Inc. , 523 U.S.
135 (1998), constricts the scope of §602(a)(1)’s ban on
unauthorized importation. I write to suggest that any problems
associated with that limitation come not from our reading of
§109(a) here, but from Qual- ity King ’s holding that §109(a)
limits §602(a)(1).

															As the Court explains, the first-sale doctrine
has played an integral part in American copyright law for over a
century. See ante , at 17–19; Bobbs-Merrill Co. v. Straus , 210 U.S.
339 (1908). No codification of the doctrine prior to 1976 even
arguably limited its application to copies made in the United
States. See ante , at 12. And nothing in the text or history
of §109(a)—the Copyright Act of 1976’s first-sale
provision—suggests that Congress meant to enact the new,
geographical restriction John Wiley proposes, which at once would
deprive American consumers of important rights and encourage
copyright holders to manufacture abroad. See ante , at 8–16,
28–31.

															That said, John Wiley is right that the Court’s
decision, when combined with Quality King , substantially
narrows §602(a)(1)’s ban on unauthorized importation. Quality
King held that the importation ban does not reach any copies
receiving first-sale protection under §109(a). See 523
U. S. , at 151–152. So notwithstanding §602(a)(1), an
“owner of a particular copy . . . lawfully made under
this title” can import that copy without the copyright owner’s
permission. §109(a). In now holding that copies “lawfully made
under this title” include copies manufactured abroad, we
unavoidably diminish §602(a)(1)’s scope—indeed, limit it to a
fairly esoteric set of applications. See ante, at 26–27.

															But if Congress views the shrinking of
§602(a)(1) as a problem, it should recognize Quality
King —not our decision today—as the culprit. Here, after all, we
merely construe §109(a); Quality King is the decision
holding that §109(a) limits §602(a)(1). Had we come out the
opposite way in that case, §602(a)(1) would allow a copyright owner
to restrict the importation of copies irrespective of the
first-sale doctrine.[ 1 ] That
result would enable the copyright owner to divide international
markets in the way John Wiley claims Congress intended when
enacting §602(a)(1). But it would do so without imposing downstream
liability on those who purchase and resell in the United States
copies that happen to have been manu- factured abroad. In other
words, that outcome would tar- get unauthorized importers alone,
and not the “libraries, used-book dealers, technology companies,
consumer-goods retailers, and museums” with whom the Court today is
rightly concerned. Ante , at 19. Assuming Congress adopted
§602(a)(1) to permit market segmentation, I sus- pect that is how
Congress thought the provision would work—not by removing
first-sale protection from every copy manufactured abroad (as John
Wiley urges us to do here), but by enabling the copyright holder to
control imports even when the first-sale doctrine applies (as Quality King now prevents).[ 2 ]

															At bottom, John Wiley (together with the
dissent) asks us to misconstrue §109(a) in order to restore
§602(a)(1) to its purportedly rightful function of enabling
copyright holders to segment international markets. I think John
Wiley may have a point about what §602(a)(1) was designed to do;
that gives me pause about Quality King ’s holding that the
first-sale doctrine limits the importation ban’s scope. But the
Court today correctly declines the invitation to save §602(a)(1)
from Quality King by destroying the first-sale protection
that §109(a) gives to every owner of a copy manufactured abroad.
That would swap one (possible) mistake for a much worse one, and
make our reading of the statute only less reflective of
Congressional intent. If Congress thinks copyright owners need
greater power to restrict importation and thus divide markets, a
ready solution is at hand—not the one John Wiley offers in this
case, but the one the Court rejected in Quality King . Notes 1 Although Quality
King concluded that the statute’s text foreclosed that outcome,
see 523 U. S., at 151–152, the Solicitor General offered a
cogent argument to the contrary. He reasoned that §109(a) does not
limit §602(a)(1) because the former authorizes owners only to
“sell” or “dispose” of copies—not to import them: The Act’s
first-sale provision and its importation ban thus regulate
separate, non-overlapping spheres of conduct. See Brief for United
States as Amicus Curiae in Quality King , O. T. 1996,
No. 96–1470, pp. 5, 8–10. That reading remains the Government’s
preferred way of construing the statute. See Tr. of Oral Arg. 44
(“[W]e think that we still would adhere to our view that section
109(a) should not be read as a limitation on section 602(a)(1)”);
see also ante, at 32–33; post, at 21, n. 15
(Ginsburg, J., dissenting). 2 Indeed, allowing the
copyright owner to restrict imports irrespective of the first-sale
doctrine— i.e. , reversing Quality King —would yield a
far more sensible scheme of market segmentation than would adopting
John Wiley’s argument here. That is because only the former
approach turns on the intended market for copies; the latter
rests instead on their place of manufacture . To see the
difference, imagine that John Wiley prints all its textbooks in New
York, but wants to distribute certain versions only in Thailand.
Without Quality King , John Wiley could do so— i.e., produce books in New York, ship them to Thailand, and prevent
anyone from importing them back into the United States. But with Quality King , that course is not open to John Wiley even
under its reading of §109(a): To prevent someone like Kirtsaeng
from re-importing the books—and so to segment the Thai market—John
Wiley would have to move its printing facilities abroad. I can see
no reason why Congress would have conditioned a copyright owner’s
power to divide markets on outsourcing its manufacturing to a
foreign country. SUPREME COURT OF THE UNITED STATES

															_________________

															No. 11–697

															_________________

															SUPAP KIRTSAENG, dba BLUECHRISTINE99,
PETITIONER v. JOHN WILEY & SONS, INC.

															on writ of certiorari to the united states
court of appeals for the second circuit

															[March 19, 2013]

															Justice Ginsburg, with whom Justice Kennedy
joins, and with whom Justice Scalia joins except as to Parts III
and V–B–1, dissenting.

															“In the interpretation of statutes, the function
of the courts is easily stated. It is to construe the language so
as to give effect to the intent of Congress.” United States v. American Trucking Assns., Inc. , 310
U.S. 534 , 542 (1940). Instead of adhering to the Legislature’s
design, the Court today adopts an interpretation of the Copyright
Act at odds with Congress’ aim to protect copyright owners against
the unauthorized importation of low-priced, foreign-made copies of
their copyrighted works. The Court’s bold departure from Congress’
design is all the more stunning, for it places the United States at
the vanguard of the movement for “international exhaustion” of
copyrights—a movement the United States has steadfastly resisted on
the world stage.

															To justify a holding that shrinks to
insignificance copyright protection against the unauthorized
importation of foreign-made copies, the Court identifies several
“practical problems.” Ante , at 24. The Court’s parade of
horribles, however, is largely imaginary. Congress’ objective in
enacting 17 U. S. C. §602(a)(1)’s importation prohibition
can be honored without generating the absurd consequences
hypothesized in the Court’s opinion. I dissent from the Court’s
embrace of “international exhaustion,” and would affirm the sound
judgment of the Court of Appeals.

															I

															Because economic conditions and demand for
particular goods vary across the globe, copyright owners have a
financial incentive to charge different prices for copies of their
works in different geographic regions. Their ability to engage in
such price discrimination, however, is under- mined if arbitrageurs
are permitted to import copies from low-price regions and sell them
in high-price regions. The question in this case is whether the
unauthorized importation of foreign-made copies constitutes
copyright infringement under U. S. law.

															To answer this question, one must examine three
provisions of Title 17 of the U. S. Code: §§106(3), 109(a),
and 602(a)(1). Section 106 sets forth the “exclusive rights” of a
copyright owner, including the right “to distribute copies or
phonorecords of the copyrighted work to the public by sale or other
transfer of ownership, or by rental, lease, or lending.” §106(3).
This distribution right is limited by §109(a), which provides:
“Notwithstanding the provisions of section 106(3), the owner of a
particular copy or phono- record lawfully made under this title
. . . is entitled, without the authority of the copyright
owner, to sell or otherwise dispose of the possession of that copy
or phonorecord.” Section 109(a) codifies the “first sale doctrine,”
a doctrine articulated in Bobbs-Merrill Co. v. Straus , 210 U.S.
339 , 349–351 (1908), which held that a copyright owner could
not control the price at which retailers sold lawfully purchased
copies of its work. The first sale doctrine recognizes that a
copyright owner should not be permitted to exercise perpetual
control over the distribution of copies of a copyrighted work. At
some point—ordinarily the time of the first commercial sale—the
copyright owner’s exclusive right under §106(3) to control the
distribution of a particular copy is exhausted, and from that point
forward, the copy can be resold or otherwise redistributed without
the copyright owner’s authorization.

															Section 602(a)(1) (2006 ed., Supp. V)[ 1 ]—last, but most critical, of the
three copyright provisions bearing on this case—is an importation
ban. It reads:

															“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 infringe- ment of the exclusive right to
distribute copies or phonorecords under section 106, actionable
under section 501.”

															In Quality King Distributors, Inc. v. L’anza Research Int’l, Inc. , 523 U.S.
135 , 143–154 (1998), the Court held that a copyright owner’s
right to control importation under §602(a)(1) is a component of the
distribution right set forth in §106(3) and is therefore subject to
§109(a)’s codification of the first sale doctrine. Quality
King thus held that the importation of copies made in the
United States but sold abroad did not rank as copyright
infringement under §602(a)(1). Id. , at 143–154. See also id. , at 154 (Ginsburg, J., concurring) ( Quality King “involve[d] a ‘round trip’ journey, travel of the copies in
question from the United States to places abroad, then back
again”).[ 2 ] Important to the
Court’s holding, the copies at issue in Quality King had
been “ ‘lawfully made under [Title 17]’ ”—a prerequisite
for application of §109(a). Id. , at 143, n. 9 (quoting
§109(a)). Section 602(a)(1), the Court noted, would apply to
“copies that were ‘lawfully made’ not under the United States
Copyright Act, but instead, under the law of some other country.” Id. , at 147. Drawing on an example discussed during a 1964
public meeting on proposed revisions to the U. S. copyright
laws,[ 3 ] the Court stated:

															“If the author of [a] work gave the
exclusive United States distribution rights—enforceable under the
Act—to the publisher of the United States edition and the exclusive
British distribution rights to the publisher of the British
edition, . . . presumably only those [copies] made by the
publisher of the United States edition would be ‘lawfully made
under this title’ within the meaning of §109(a). The first sale
doctrine would not provide the publisher of the British edition who
decided to sell in the American market with a defense to an action
under §602(a) (or, for that matter, to an action under §106(3), if
there was a distribution of the copies).” Id. , at 148.

															As the District Court and the Court of Appeals
concluded, see 654 F.3d 210, 221–222 (CA2 2011); App. to Pet. for
Cert. 70a–73a, application of the Quality King analysis to
the facts of this case would preclude any invocation of §109(a).
Petitioner Supap Kirtsaeng imported and then sold at a profit over
600 copies of copyrighted textbooks printed outside the United
States by the Asian subsidiary of respondent John Wiley & Sons,
Inc. (Wiley). App. 29–34. See also ante , at 3–5 (opinion of
the Court). In the words the Court used in Quality King ,
these copies “were ‘lawfully made’ not under the United States
Copyright Act, but instead, under the law of some other country.”
523 U. S., at 147. Section 109(a) therefore does not ap- ply,
and Kirtsaeng’s unauthorized importation constitutes copyright
infringement under §602(a)(1).

															The Court does not deny that under the language
I have quoted from Quality King , Wiley would prevail. Ante , at 27. Nevertheless, the Court dismisses this
language, to which all Members of the Quality King Court
subscribed, as ill-considered dictum. Ante , at 27–28. I
agree that the discussion was dictum in the sense that it was not
essential to the Court’s judgment. See Quality King , 523
U. S., at 154 (Ginsburg, J., concurring) (“[W]e do not today
resolve cases in which the allegedly infringing imports were
manufactured abroad.”). But I disagree with the Court’s conclusion
that this dictum was ill considered. Instead, for the reasons
explained below, I would hold, consistently with Quality
King ’s dictum, that §602(a)(1) authorizes a copyright owner to
bar the importation of a copy manufactured abroad for sale
abroad.

															II

															The text of the Copyright Act demonstrates
that Congress intended to provide copyright owners with a potent
remedy against the importation of foreign-made copies of their
copyrighted works. As the Court recognizes, ante , at 3, this
case turns on the meaning of the phrase “lawfully made under this
title” in §109(a). In my view, that phrase is most sensibly read as
referring to instances in which a copy’s creation is governed by,
and conducted in compliance with, Title 17 of the U. S. Code.
This reading is consistent with the Court’s interpretation of
similar language in other statutes. See Florida Dept. of
Revenue v. Piccadilly Cafeterias, Inc. , 554 U.S.
33 , 52–53 (2008) (“under” in 11 U. S. C. §1146(a), a
Bankruptcy Code provision exempting certain asset transfers from
stamp taxes, means “pursuant to”); Ardestani v. INS , 502 U.S.
129 , 135 (1991) (the phrase “under section 554” in the Equal
Access to Justice Act means “subject to” or “governed by” 5
U. S. C. §554 (internal quotation marks omitted)). It
also accords with dictionary definitions of the word “under.” See, e.g. , American Heritage Dictionary 1887 (5th ed. 2011)
(“under” means, among other things, “[s]ubject to the authority,
rule, or control of”).

															Section 109(a), properly read, affords Kirtsaeng
no defense against Wiley’s claim of copyright infringement. The
Copyright Act, it has been observed time and again, does not apply
extraterritorially. See United Dictionary Co. v. G. &
C. Merriam Co. , 208 U.S.
260 , 264 (1908) (copyright statute requiring that U. S.
copyright notices be placed in all copies of a work did not apply
to copies published abroad because U. S. copyright laws have
no “force” beyond the United States’ borders); 4 M. Nimmer & D.
Nimmer, Copyright §17.02, p. 17–18 (2012) (hereinafter Nimmer)
(“[C]opyright laws do not have any extraterritorial operation.”); 4
W. Patry, Copyright §13:22, p. 13–66 (2012) (hereinafter
Patry) (“Copyright laws are rigor- ously territorial.”). The
printing of Wiley’s foreign-manufactured textbooks therefore was
not governed by Title 17. The textbooks thus were not “lawfully
made under [Title 17],” the crucial precondition for application of
§109(a). And if §109(a) does not apply, there is no dispute that
Kirtsaeng’s conduct constituted copyright infringement under
§602(a)(1).

															The Court’s point of departure is similar to
mine. According to the Court, the phrase “ ‘lawfully made
under this title’ means made ‘in accordance with’ or ‘in compliance
with’ the Copyright Act.” Ante , at 8. But the Court
overlooks that, according to the very dictionaries it cites, ante , at 9, the word “under” commonly signals a relationship
of subjection, where one thing is governed or regu- lated by
another. See Black’s Law Dictionary 1525 (6th ed. 1990) (“under”
“frequently” means “inferior” or “subordinate” (internal quotation
marks omitted)); 18 Oxford English Dictionary 950 (2d ed. 1989)
(“under” means, among other things, “[i]n accordance with ( some
regulative power or principle )” (emphasis added)). See also
Webster’s Third New International Dictionary 2487 (1961) (“under”
means, among other things, “in . . . a condition of sub-
jection, regulation, or subordination” and “suffering restriction,
restraint, or control by”). Only by disregarding this established
meaning of “under” can the Court arrive at the conclusion that
Wiley’s foreign-manufactured textbooks were “lawfully made under”
U. S. copyright law, even though that law did not govern their
creation. It is anomalous, however, to speak of particular conduct
as “lawful” under an inapplicable law. For example, one might say
that driving on the right side of the road in England is “lawful”
under U. S. law, but that would be so only because U. S.
law has nothing to say about the subject. The governing law is
English law, and English law demands that driving be done on the
left side of the road.[ 4 ]

															The logical implication of the Court’s
definition of the word “under” is that any copy manufactured
abroad—even a piratical one made without the copyright owner’s
authorization and in violation of the law of the country where it
was created—would fall within the scope of §109(a). Any such copy
would have been made “in accordance with” or “in compliance with”
the U. S. Copyright Act, in the sense that manufacturing the
copy did not violate the Act (because the Act does not apply
extraterritorially).

															The Court rightly refuses to accept such an
absurd conclusion. Instead, it interprets §109(a) as applying only
to copies whose making actually complied with Title 17, or would
have complied with Title 17 had Title 17 been applicable
( i.e. , had the copies been made in the United States). See ante , at 8 (“§109(a)’s ‘first sale’ doctrine would apply to
copyrighted works as long as their manufacture met the requirements
of American copyright law.”). Congress, however, used express
language when it called for such a counterfactual inquiry in 17
U. S. C. §§602(a)(2) and (b). See §602(a)(2)
(“Importation into the United States or exportation from the United
States, without the authority of the owner of copyright under this
title, of copies or phonorecords, the making of which either
constituted an infringement of copyright, or which would have
constituted an infringement of copyright if this title had been
applicable , is an infringement of the exclusive right to
distribute copies or phonorecords under section 106.” (emphasis
added)); §602(b) (“In a case where the making of the copies or
phonorecords would have constituted an infringement of copyright
if this title had been applicable , their importation is
prohibited.” (emphasis added)). Had Congress intended courts to
engage in a similarly hypothetical inquiry under §109(a), Congress
would pre- sumably have included similar language in that section.
See Russello v. United States , 464 U.S.
16 , 23 (1983) (“ ‘[W]here Congress includes particular
language in one section of a statute but omits it in another
section of the same Act, it is generally presumed that Congress
acts intentionally and purposely in the disparate inclusion or
exclusion.’ ” (quoting United States v. Wong Kim
Bo , 472 F.2d 720, 722 (CA5 1972) ( per curiam ); brackets
in original)).[ 5 ]

															Not only does the Court adopt an unnatural
construction of the §109(a) phrase “lawfully made under this
title.” Concomitantly, the Court reduces §602(a)(1) to
insignificance. As the Court appears to acknowledge, see ante , at 26, the only independent effect §602(a)(1) has
under today’s decision is to prohibit unauthorized importations
carried out by persons who merely have possession of, but do not
own, the imported copies. See 17 U. S. C. §109(a)
(§109(a) applies to any “ owner of a particular copy or
phonorecord lawfully made under this title” (emphasis
added)).[ 6 ] If this is enough
to avoid rendering §602(a)(1) entirely “superfluous,” ante ,
at 26, it hardly suffices to give the owner’s importation right the
scope Congress intended it to have. Congress used broad language in
§602(a)(1); it did so to achieve a broad objective. Had Congress
intended simply to provide a copyright remedy against larcenous
lessees, licensees, consignees, and bailees of films and other
copyright-protected goods, see ante , at 13–14, 26, it likely
would have used language tailored to that narrow purpose. See 2
Nimmer §8.12[B][6][c], at 8–184.31, n. 432 (“It may be
wondered whether . . . potential causes of action [against
licensees and the like] are more than theoretical.”). See also ante , at 2 (Kagan, J., concurring) (the Court’s decision
limits §602(a)(1) “to a fairly esoteric set of
applications”).[ 7 ]

															The Court’s decision also overwhelms 17
U. S. C. §602(a)(3)’s exceptions to §602(a)(1)’s
importation prohibition. 2 P. Goldstein, Copyright §7.6.1.2(a), p.
7:141 (3d ed. 2012) (hereinafter Goldstein).[ 8 ] Those exceptions permit the importation of
copies without the copyright owner’s authorization for certain
governmental, personal, schol- arly, educational, and religious
purposes. 17 U. S. C. §602(a)(3). Copies imported under
these exceptions “will often be lawfully made gray market goods
purchased through normal market channels abroad.” 2 Goldstein
§7.6.1.2(a), at 7:141.[ 9 ] But
if, as the Court holds, such copies can in any event be imported by
virtue of §109(a), §602(a)(3)’s work has already been done. For
example, had Congress conceived of §109(a)’s sweep as the Court
does, what earthly reason would there be to provide, as Congress
did in §602(a)(3)(C), that a library may import “no more than five
copies” of a non-audiovisual work for its “lending or archival
purposes”?

															The far more plausible reading of §§109(a) and
602(a), then, is that Congress intended §109(a) to apply to copies
made in the United States, not to copies manufactured and sold
abroad. That reading of the first sale and importation provisions
leaves §602(a)(3)’s exceptions with real, meaningful work to do.
See TRW Inc. v. Andrews , 534 U.S.
19 , 31 (2001) (“It is a cardinal principle of statutory
construction that a statute ought, upon the whole, to be so
construed that, if it can be prevented, no clause, sen- tence, or
word shall be superfluous, void, or insignificant.” (internal
quotation marks omitted)). In the range of circum- stances covered
by the exceptions, §602(a)(3) frees individuals and entities who
purchase foreign-made copies abroad from the requirement they would
otherwise face under §602(a)(1) of obtaining the copyright owner’s
permission to import the copies into the United States.[ 10 ]

															III

															The history of §602(a)(1) reinforces the
conclusion I draw from the text of the relevant provisions: §109(a)
does not apply to copies manufactured abroad. Section 602(a)(1) was
enacted as part of the Copyright Act of 1976, 90Stat. 2589–2590.
That Act was the product of a lengthy revision effort overseen by
the U. S. Copyright Office. See Mills Music, Inc. v. Snyder , 469 U.S.
153 , 159–160 (1985). In its initial 1961 report on recommended
revisions, the Copyright Office noted that publishers had
“suggested that the [then-existing] import ban on piratical copies
should be extended to bar the importation of . . .
foreign edition[s]” in violation of “agreements to divide
international markets for copyrighted works.” Copyright Law
Revision: Report of the Register of Copyrights on the General
Revision of the U. S. Copyright Law, 87th Cong., 1st Sess.,
126 (H. R. Judiciary Comm. Print 1961) (hereinafter Copyright
Law Revision). See Copyright Act of 1947, §106, 61Stat. 663 (“The
importation into the United States . . . of any piratical
copies of any work copyrighted in the United States . . .
is prohibited.”). The Copyright Office originally recommended
against such an extension of the importation ban, reasoning that
enforcement of territorial restrictions was best left to contract
law. Copyright Law Revision 126.

															Publishing-industry representatives argued
strenuously against the position initially taken by the Copyright
Office. At a 1962 panel discussion on the Copyright Office’s
report, for example, Horace Manges of the American Book Publishers
Council stated:

															“When a U. S. book publisher enters
into a contract with a British publisher to acquire exclusive
U. S. rights for a particular book, he often finds that the
English edition . . . of that particular book finds its
way into this country. Now it’s all right to say, ‘Commence a
lawsuit for breach of contract.’ But this is expensive, burdensome,
and, for the most part, ineffective.” Copyright Law Revision Part
2: Discussion and Comments on Report of the Register of Copyrights
on the General Revision of the U. S. Copyright Law, 88th
Cong., 1st Sess., 212 (H. R. Judiciary Comm. Print 1963).

															Sidney Diamond, representing London Records,
elaborated on Manges’ statement. “There are many situations,” he
explained, “in which it is not necessarily a question of the
inadequacy of a contract remedy—in the sense that it may be
difficult or not quick enough to solve the particular problem.” Id. , at 213. “Very frequently,” Diamond stated, publishers
“run into a situation where . . . copies of [a] work
. . . produced in a foreign country . . . may
be shipped [to the United States] without violating any contract of
the U. S. copyright proprietor.” Ibid. To illustrate,
Diamond noted, if a “British publisher [sells a copy] to an
individual who in turn ship[s] it over” to the United States, the
individual’s conduct would not “violate [any] contract between the
British and the American publisher.” Ibid. In such a case,
“no possibility of any contract remedy” would exist. Ibid. The facts of Kirtsaeng’s case fit Diamond’s example, save that the
copies at issue here were printed and ini- tially sold in Asia
rather than Great Britain.

															After considering comments on its 1961 report,
the Copyright Office “prepared a preliminary draft of provisions
for a new copyright statute.” Copyright Law Revision Part 3:
Preliminary Draft for Revised U. S. Copyright Law and
Discussions and Comments on the Draft, 88th Cong., 2d Sess., v
(H. R. Judiciary Comm. Print 1964). Section 44 of the draft
statute addressed the concerns raised by publishing-industry
representatives. In particular, §44(a) provided:

															“Importation into the United States of
copies or records of a work for the purpose of distribution to the
public shall, if such articles are imported without the authority
of the owner of the exclusive right to distribute copies or records
under this title, constitute an infringement of copyright
actionable under section 35 [ i.e. , the section providing for
a private cause of action for copyright infringement].” Id. ,
at 32–33.

															In a 1964 panel discussion regarding the draft
statute, Abe Goldman, the Copyright Office’s General Counsel, left
no doubt about the meaning of §44(a). It represented, he explained,
a “shif[t]” from the Copyright Office’s 1961 report, which had
recommended against using copyright law to facilitate publishers’
efforts to segment interna- tional markets. Copyright Law Revision
Part 4: Further Discussions and Comments on Preliminary Draft for
Revised U. S. Copyright Law, 88th Cong., 2d Sess., 203
(H. R. Judiciary Comm. Print 1964). Section 44(a), Goldman
stated, would allow copyright owners to bring infringement actions
against importers of “foreign copies that were made under proper
authority.” Ibid. See also id. , at 205–206 (Goldman
agreed with a speaker’s comment that §44(a) “enlarge[d]” U. S.
copyright law by extending import prohibitions “to works legally
produced in Europe” and other foreign countries).[ 11 ]

															The next step in the copyright revision process
was the introduction in Congress of a draft bill on July 20, 1964.
See Copyright Law Revision Part 5: 1964 Revision Bill with
Discussions and Comments, 89th Cong., 1st Sess., iii (H. R.
Judiciary Comm. Print 1965). After another round of public
comments, a revised bill was introduced on February 4, 1965. See
Copyright Law Revision Part 6: Supplementary Report of the Register
of Copyrights on the General Revision of the U. S. Copyright
Law: 1965 Revision Bill, 89th Cong., 1st Sess., v (H. R.
Judiciary Comm. Print 1965) (hereinafter Copyright Law Revision
Part 6). In language closely resembling the statutory text later
enacted by Congress, §602(a) of the 1965 bill provided:

															“Importation into the United States,
without the authority of the owner of copyright under this title,
of copies or phonorecords of a work for the purpose of distribution
to the public is an infringement of the exclusive right to
distribute copies or phonorecords under section 106, actionable
under section 501.” Id. , at 292.[ 12 ]

															The Court implies that the 1965 bill’s
“explici[t] refer[ence] to §106” showed a marked departure from
§44(a) of the Copyright Office’s prior draft. Ante , at 29.
The Copyright Office, however, did not see it that way. In its
summary of the 1965 bill’s provisions, the Copyright Office
observed that §602(a) of the 1965 bill, like §44(a) of the
Copyright Office’s prior draft, see supra , at 15–16,
permitted copyright owners to bring infringement actions against
unauthorized importers in cases “where the copyright owner had
authorized the making of [the imported] copies in a foreign country
for distribution only in that country.” Copyright Law Revision Part
6, at 149–150. See also id. , at xxvi (Under §602(a) of the
1965 bill, “[a]n unauthorized importer could be enjoined and sued
for damages both where the copies or phonorecords he was importing
were ‘piratical’ (that is, where their making would have
constituted an infringement if the U. S. copyright law could
have been applied), and where their making was
‘lawful.’ ”).

															The current text of §602(a)(1) was finally
enacted into law in 1976. See Copyright Act of 1976, §602(a),
90Stat. 2589–2590. The House and Senate Committee Reports on the
1976 Act demonstrate that Congress understood, as did the Copyright
Office, just what that text meant. Both Reports state:

															“Section 602 [deals] with two separate
situations: importation of ‘piratical’ articles (that is, copies or
phonorecords made without any authorization of the copyright
owner), and unauthorized importation of copies or phonorecords that
were lawfully made. The general approach of section 602 is to
make unauthorized importation an act of infringement in both
cases , but to permit the Bureau of Customs to prohibit
importation only of ‘piratical’ articles.” S. Rep. No. 94–473,
p. 151 (1975) (emphasis added). See also H. R. Rep. No.
94–1476, p. 169 (1976) (same).

															In sum, the legislative history of the Copyright
Act of 1976 is hardly “inconclusive.” Ante , at 28. To the
con- trary, it confirms what the plain text of the Act conveys:
Congress intended §602(a)(1) to provide copyright owners with a
remedy against the unauthorized importation of foreign-made copies
of their works, even if those copies were made and sold abroad with
the copyright owner’s authorization.[ 13 ]

															IV

															Unlike the Court’s holding, my position is
consistent with the stance the United States has taken in
international-trade negotiations. This case bears on the highly
con- tentious trade issue of interterritorial exhaustion. The issue
arises because intellectual property law is territorial in nature,
see supra , at 6, which means that creators of intellectual
property “may hold a set of parallel” intellectual property rights
under the laws of different nations. Chiappetta, The Desirability
of Agreeing to Disagree: The WTO, TRIPS, International IPR
Exhaustion and a Few Other Things, 21 Mich. J. Int’l L. 333,
340–341 (2000) (hereinafter Chiappetta). There is no international
consensus on whether the sale in one country of a good in-
corporating protected intellectual property exhausts the
intellectual property owner’s right to control the distribution of
that good elsewhere. Indeed, the members of the World Trade
Organization, “agreeing to disagree,”[ 14 ] provided in Article 6 of the Agreement on
Trade-Related Aspects of Intellectual Property Rights (TRIPS), Apr.
15, 1994, 33 I. L. M. 1197, 1200, that “nothing in this Agreement
shall be used to address the issue of . . . exhaustion.”
See Chiappetta 346 (observing that exhaustion of intellectual
property rights was “hotly debated” during the TRIPS negotiations
and that Article 6 “reflects [the negotiators’] ultimate inability
to agree” on a single international standard). Similar language
appears in other treaties to which the United States is a party.
See World Intellectual Property Organization (WIPO) Copyright
Treaty, Art. 6(2), Dec. 20, 1996, S. Treaty Doc. No. 105–17, p. 7
(“Nothing in this Treaty shall affect the freedom of Contracting
Parties to determine the conditions, if any, under which the
exhaustion of the right [to control distribution of copies of a
copyrighted work] applies after the first sale or other transfer of
ownership of the original or a copy of the work with the
authorization of the author.”); WIPO Performances and Phonograms
Treaty, Art. 8(2), Dec. 20, 1996, S. Treaty Doc. No. 105–17, p. 28
(containing language nearly identical to Article 6(2) of the WIPO
Copyright Treaty).

															In the absence of agreement at the international
level, each country has been left to choose for itself the
exhaustion framework it will follow. One option is a
national-exhaustion regime, under which a copyright owner’s right
to control distribution of a particular copy is exhausted only
within the country in which the copy is sold. See Forsyth &
Rothnie, Parallel Imports, in The Interface Between Intellectual
Property Rights and Competition Policy 429, 430 (S. Anderman ed.
2007) (hereinafter Forsyth & Rothnie). Another option is a rule
of international exhaustion, under which the authorized
distribution of a particular copy anywhere in the world exhausts
the copyright owner’s distribution right everywhere with respect to
that copy. See ibid. The European Union has adopted the
intermediate approach of regional exhaustion, under which the sale
of a copy anywhere within the European Economic Area exhausts the
copyright owner’s distribution right throughout that region. See id. , at 430, 445. Section 602(a)(1), in my view, ties the
United States to a national-exhaustion framework. The Court’s
decision, in con- trast, places the United States solidly in the
international-exhaustion camp.

															Strong arguments have been made both in favor
of, and in opposition to, international exhaustion. See Chiappetta
360 (“[r]easonable people making valid points can, and do, reach
conflicting conclusions” regarding the desirability of
international exhaustion). International exhaustion subjects
copyright-protected goods to competition from lower priced imports
and, to that extent, benefits con- sumers. Correspondingly,
copyright owners profit from a national-exhaustion regime, which
also enlarges the monetary incentive to create new copyrightable
works. See Forsyth & Rothnie 432–437 (surveying arguments for
and against international exhaustion).

															Weighing the competing policy concerns, our
Government reached the conclusion that widespread adoption of the
international-exhaustion framework would be inconsistent with the
long-term economic interests of the United States. See Brief for
United States as Amicus Curiae in Quality King , O. T.
1997, No. 96–1470, pp. 22–26 (hereinafter Quality King Brief).[ 15 ] Accordingly, the
United States has steadfastly “taken the position in international
trade negotiations that domestic copyright owners should
. . . have the right to prevent the unauthorized
importation of copies of their work sold abroad.” Id. ,
at 22. The United States has “advanced this position in
multilateral trade negotiations,” including the negotiations on the
TRIPS Agreement. Id. , at 24. See also D. Gervais, The TRIPS
Agreement: Drafting History and Analysis §2.63, p. 199 (3d ed.
2008). It has also taken a dim view of our trading partners’
adoption of legislation incorporating elements of international
exhaustion. See Clapperton & Corones, Locking in Customers,
Locking Out Competitors: Anti-Circumvention Laws in Australia and
Their Potential Effect on Competition in High Technology Markets,
30 Melbourne U. L. Rev. 657, 664 (2006) (United States
expressed concern regarding international-exhaustion leg- islation
in Australia); Montén, Comment, The Inconsistency Between Section
301 and TRIPS: Counterproductive With Respect to the Future of
International Protection of Intellectual Property Rights? 9 Marq.
Intellectual Property L. Rev. 387, 417–418 (2005) (same with
respect to New Zealand and Taiwan).

															Even if the text and history of the Copyright
Act were am- biguous on the answer to the question this case
presents—which they are not, see Parts II–III, supra [ 16 ]—I would
resist a holding out of accord with the firm position the United
States has taken on exhaustion in international negotiations. Quality King , I acknowledge, discounted the Government’s
concerns about potential inconsistency with United States
obligations under certain bilateral trade agreements. See 523
U. S., at 153–154. See also Quality King Brief 22–24
(listing the agreements). That decision, however, dealt only with
copyright-protected products made in the United States. See 523
U. S., at 154 (Ginsburg, J., concurring). Quality King left open the question whether owners of U. S. copyrights
could retain control over the importation of copies manufactured
and sold abroad—a point the Court obscures, see ante, at 33
(arguing that Quality King “significantly eroded” the
national-exhaustion principle that, in my view, §602(a)(1)
embraces). The Court today answers that question with a resounding
“no,” and in doing so, it risks undermining the United States’
credibility on the world stage. While the Government has urged our
trading partners to refrain from adopting international-exhaustion
regimes that could benefit consumers within their borders but would
impact adversely on intellectual-property producers in the United
States, the Court embraces an international-exhaustion rule that
could benefit U. S. consumers but would likely disadvantage
foreign holders of U. S. copyrights. This dissonance scarcely
enhances the United States’ “role as a trusted partner in
multilateral endeavors.” Vimar Seguros y Reaseguros, S. A. v. M/V Sky Reefer , 515 U.S.
528 , 539 (1995).

															V

															I turn now to the Court’s justifications for a
decision difficult to reconcile with the Copyright Act’s text and
history.

															A

															The Court asserts that its holding “is
consistent with antitrust laws that ordinarily forbid market
divisions.” Ante , at 32. See also ante , at 18 (again
referring to antitrust principles). Section 602(a)(1), however,
read as I do and as the Government does, simply facilitates
copyright owners’ efforts to impose “vertical restraints” on
distributors of copies of their works. See Forsyth & Rothnie
435 (“Parallel importation restrictions enable manufacturers and
distributors to erect ‘vertical restraints’ in the market through
exclusive distribution agreements.”). See gener- ally Leegin
Creative Leather Products, Inc. v. PSKS, Inc. , 551 U.S.
877 (2007) (discussing vertical restraints). We have held that
vertical restraints are not per se illegal under §1 of
the Sherman Act, 15 U. S. C. §1, because such “restraints
can have procompetitive effects.” 551 U. S., at
881–882.[ 17 ]

															B

															The Court sees many “horribles” following from
a holding that the §109(a) phrase “lawfully made under this title”
does not encompass foreign-made copies. Ante , at 22
(internal quotation marks omitted). If §109(a) excluded
foreign-made copies, the Court fears, then copyright owners could
exercise perpetual control over the downstream distribution or
public display of such copies. A ruling in Wiley’s favor, the Court
asserts, would shutter libraries, put used-book dealers out of
business, cripple art museums, and prevent the resale of a wide
range of consumer goods, from cars to calculators. Ante , at
19–22. See also ante , at 2–3 (Kagan, J., concurring)
(expressing concern about “imposing downstream liability on those
who purchase and resell in the United States copies that happen to
have been manufactured abroad”). Copyright law and precedent,
however, erect barriers to the anticipated horribles.[ 18 ]

															1

															Recognizing that foreign-made copies fall
outside the ambit of §109(a) would not mean they are forever free
of the first sale doctrine. As earlier observed, see supra ,
at 2, the Court stated that doctrine initially in its 1908 Bobbs-Merrill decision. At that time, no statutory provision
expressly codified the first sale doctrine. Instead, copyright law
merely provided that copyright owners had “the sole liberty of
printing, reprinting, publishing, completing, copying, executing,
finishing, and vending” their works. Copyright Act of 1891, §1,
26Stat. 1107.

															In Bobbs-Merrill , the Court addressed the
scope of the statutory right to “ven[d].” In granting that right,
the Court held, Congress did not intend to permit copyright owners
“to fasten . . . a restriction upon the subsequent
alienation of the subject-matter of copyright after the owner had
parted with the title to one who had acquired full dominion over it
and had given a satisfactory price for it.” 210 U. S., at
349–350. “[O]ne who has sold a copyrighted article . . .
without restriction,” the Court explained, “has parted with all
right to control the sale of it.” Id. , at 350. Thus, “[t]he
purchaser of a book, once sold by authority of the owner of the
copyright, may sell it again, although he could not publish a new
edition of it.” Ibid. Under the logic of Bobbs-Merrill , the
sale of a foreign-manufactured copy in the United States carried
out with the copyright owner’s authorization would exhaust the
copyright owner’s right to “vend” that copy. The copy could
thenceforth be resold, lent out, or otherwise redistributed without
further authorization from the copyright owner. Although §106(3)
uses the word “distribute” rather than “vend,” there is no reason
to think Congress intended the word “distribute” to bear a meaning
different from the construction the Court gave to the word “vend”
in Bobbs-Merrill . See ibid. (emphasizing that the
question before the Court was “purely [one] of statutory
construction”).[ 19 ] Thus, in
accord with Bobbs-Merrill , the first authorized distribution
of a foreign-made copy in the United States exhausts the copyright
owner’s distribution right under §106(3). After such an authorized
distribution, a library may lend, or a used-book dealer may resell,
the foreign-made copy without seeking the copyright owner’s
permission. Cf. ante , at 19–21.

															For example, if Wiley, rather than Kirtsaeng,
had imported into the United States and then sold the foreign-made
textbooks at issue in this case, Wiley’s §106(3) distribution right
would have been exhausted under the rationale of Bobbs-Merrill . Purchasers of the textbooks would thus be
free to dispose of the books as they wished without first gaining a
license from Wiley.

															This line of reasoning, it must be acknowledged,
significantly curtails the independent effect of §109(a). If, as I
maintain, the term “distribute” in §106(3) incorporates the first
sale doctrine by virtue of Bobbs-Merrill , then §109(a)’s
codification of that doctrine adds little to the regulatory
regime.[ 20 ] Section 109(a),
however, does serve as a statutory bulwark against courts deviating
from Bobbs-Merrill in a way that increases copyright owners’
control over downstream distribution, and legislative history
indicates that is precisely the role Congress intended §109(a) to
play. Congress first codified the first sale doctrine in §41 of the
Copyright Act of 1909, 35Stat. 1084.[ 21 ] It did so, the House Committee Report on the 1909 Act
explains, “in order to make . . . clear that [Congress
had] no intention [of] enlarg[ing] in any way the construction to
be given to the word ‘vend.’ ” H. R. Rep. No. 2222, 60th
Cong., 2d Sess., 19 (1909). According to the Committee Report, §41
was “not intended to change [existing law] in any way.” Ibid. The position I have stated and explained accords with
this expression of congressional intent. In enacting §41 and its
successors, I would hold, Congress did not “change . . . existing
law,” ibid. , by stripping the word “vend” (and thus its
substitute “distribute”) of the limiting construction imposed in Bobbs-Merrill .

															In any event, the reading of the Copyright Act
to which I subscribe honors Congress’ aim in enacting §109(a) while
the Court’s reading of the Act severely diminishes §602(a)(1)’s
role. See supra , at 10–12. My position in no way tugs
against the principle underlying §109(a)— i.e. , that certain
conduct by the copyright owner exhausts the owner’s §106(3)
distribution right. The Court, in contrast, fails to give
meaningful effect to Congress’ manifest intent in §602(a)(1) to
grant copyright owners the right to control the importation of
foreign-made copies of their works.

															2

															Other statutory prescriptions provide further
protection against the absurd consequences imagined by the Court.
For example, §602(a)(3)(C) permits “an organization operated for
scholarly, educational, or religious purposes” to import, without
the copyright owner’s authorization, up to five foreign-made copies
of a non-audiovisual work—notably, a book—for “library lending or
archival purposes.” But cf. ante , at 19–20 (suggesting that
affirming the Second Circuit’s decision might prevent libraries
from lending foreign-made books).[ 22 ]

															The Court also notes that amici representing art museums fear that a ruling in Wiley’s favor would
prevent museums from displaying works of art created abroad. Ante , at 22 (citing Brief for Association of Art Museum
Directors et al.). These amici observe that a museum’s
right to display works of art often depends on 17
U. S. C. §109(c). See Brief for Association of Art Museum
Directors et al. 11–13.[ 23 ] That provision addresses exhaustion of a copyright
owner’s exclusive right under §106(5) to publicly display the
owner’s work. Because §109(c), like §109(a), applies only to copies
“lawfully made under this title,” amici contend that a
ruling in Wiley’s favor would prevent museums from invoking §109(c)
with respect to foreign-made works of art. Id. , at
11–13.[ 24 ]

															Limiting §109(c) to U. S.-made works,
however, does not bar art museums from lawfully displaying works
made in other countries. Museums can, of course, seek the copyright
owner’s permission to display a work. Furthermore, the sale of a
work of art to a U. S. museum may carry with it an implied
license to publicly display the work. See 2 Patry §5:131,
at 5–280 (“[C]ourts have noted the potential availability of
an implied nonexclusive licens[e] when the circumstances
. . . demonstrate that the parties intended that the work
would be used for a specific purpose.”). Displaying a work of art
as part of a museum exhibition might also qualify as a “fair use”
under 17 U. S. C. §107. Cf. Bouchat v. Baltimore Ravens Ltd. Partnership , 619 F.3d 301, 313–316
(CA4 2010) (display of copyrighted logo in museum-like exhibition
constituted “fair use”).

															The Court worries about the resale of
foreign-made consumer goods “contain[ing] copyrightable software
pro- grams or packaging.” Ante , at 21. For example, the
Court observes that a car might be programmed with diverse forms of
software, the copyrights to which might be owned by individuals or
entities other than the manu- facturer of the car. Ibid. Must a car owner, the Court asks, obtain permission from all of
these various copyright owners before reselling her car? Ibid. Although this question strays far from the one
presented in this case and briefed by the parties, principles of
fair use and implied license (to the extent that express licenses
do not exist) would likely permit the car to be resold without the
copyright owners’ authorization.[ 25 ]

															Most telling in this regard, no court, it
appears, has been called upon to answer any of the Court’s
“horribles” in an actual case. Three decades have passed since a
federal court first published an opinion reading §109(a) as
applicable exclusively to copies made in the United States. See Columbia Broadcasting System, Inc. v. Scorpio Music
Distributors, Inc. , 569 F. Supp. 47 , 49 (ED Pa. 1983), summarily aff’d, 738 F.2d
424 (CA3 1984) (table). Yet Kirtsaeng and his supporting amici cite not a single case in which the owner of a
consumer good authorized for sale in the United States has been
sued for copyright infringement after reselling the item or giving
it away as a gift or to charity. The absence of such lawsuits is
unsurprising. Routinely suing one’s customers is hardly a best
business practice.[ 26 ]
Manufacturers, moreover, may be hesitant to do business with
software programmers taken to suing consumers. Manufacturers may
also insist that soft- ware programmers agree to contract terms
barring such lawsuits.

															The Court provides a different explanation for
the absence of the untoward consequences predicted in its
opinion—namely, that lower court decisions regarding the scope of
§109(a)’s first sale prescription have not been uniform. Ante , at 23. Uncertainty generated by these conflicting
decisions, the Court notes, may have deterred some copyright owners
from pressing infringement claims. Ante , at 23–24. But if,
as the Court suggests, there are a multitude of copyright owners
champing at the bit to bring lawsuits against libraries, art
museums, and consumers in an effort to exercise perpetual control
over the downstream distribution and public display of foreign-made
copies, might one not expect that at least a handful of such
lawsuits would have been filed over the past 30 years? The absence
of such suits indicates that the “practical problems” hypothesized
by the Court are greatly exaggerated. Ante , at 24.[ 27 ] They surely do not warrant
disregarding Congress’ intent, expressed in §602(a)(1), to grant
copyright owners the authority to bar the importation of
foreign-made copies of their works. Cf. Hartford Underwriters
Ins. Co. v. Union Planters Bank, N. A. , 530 U.S.
1 , 6 (2000) (“[W]hen the statute’s language is plain, the sole
function of the courts—at least where the disposition required by
the text is not absurd—is to enforce it according to its terms.”
(internal quotation marks omitted)).

															VI

															To recapitulate, the objective of statutory
interpretation is “to give effect to the intent of Congress.” American Trucking Assns. , 310 U. S., at 542. Here, two
congres- sional aims are evident. First, in enacting §602(a)(1),
Con- gress intended to grant copyright owners permission to segment
international markets by barring the importation of foreign-made
copies into the United States. Second, as codification of the first
sale doctrine underscores, Congress did not want the exclusive
distribution right conferred in §106(3) to be boundless. Instead of
harmonizing these objectives, the Court subordinates the first
entirely to the second. It is unsurprising that none of the three
major treatises on U. S. copyright law embrace the Court’s
construction of §109(a). See 2 Nimmer §8.12[B][6][c], at 8–184.34
to 8–184.35; 2 Goldstein §7.6.1.2(a), at 7:141; 4 Patry
§§13:22, 13:44, 13:44.10.

															Rather than adopting the very
international-exhaustion rule the United States has consistently
resisted in international-trade negotiations, I would adhere to the
national-exhaustion framework set by the Copyright Act’s text and
history. Under that regime, codified in §602(a)(1), Kirtsaeng’s
unauthorized importation of the foreign-made textbooks involved in
this case infringed Wiley’s copyrights. I would therefore affirm
the Second Circuit’s judgment. Notes 1 In 2008, Congress
renumbered what was previously §602(a) as §602(a)(1). See
Prioritizing Resources and Organization for Intellectual Property
Act of 2008 (PROIPA), §105(b)(2), 122Stat. 4259. Like the Court, I
refer to the provision by its current numbering. 2 Although Justice Kagan’s
concurrence suggests that Quality King erred in “holding
that §109(a) limits §602(a)(1),” ante , at 2, that recent,
unanimous holding must be taken as a given. See John R. Sand
& Gravel Co. v. United States , 552 U.S.
130 , 139 (2008) (“ [S]tare decisis in respect to
statutory interpretation has ‘special force,’ for ‘Congress remains
free to alter what we have done.’ ” (quoting Patterson v. McLean Credit Union , 491 U.S.
164 , 172–173 (1989))). The Court’s objective in this case
should be to avoid unduly “constrict[ing] the scope of §602(a)(1)’s
ban on unauthorized importation,” ante , at 1 (opinion of
Kagan, J.), while at the same time remaining faithful to Quality
King ’s holding and to the text and history of other Copyright
Act provisions. This aim is not difficult to achieve. See Parts
II–V, infra . Justice Kagan and I appear to agree to this
extent: Congress meant the ban on unauthorized importation to have
real force. See ante , at 3 (acknowledging that “Wiley may
have a point about what §602(a)(1) was designed to
do”). 3 See Quality King
Distributors, Inc. v. L’anza Research Int’l, Inc. , 523 U.S.
135 , 148, n. 20 (1998) (quoting Copyright Law Revision Part 4:
Further Discussions and Comments on Preliminary Draft for Revised
U. S. Copyright Law, 88th Cong., 2d Sess., 119 (H. R.
Judiciary Comm. Print 1964) (hereinafter Copyright Law Revision
Part 4) (statement of Harriet Pilpel)). 4 The Court asserts that my
position gives the word “lawfully” in §109(a) “little, if any,
linguistic work to do.” Ante , at 9. That is not so. My
reading gives meaning to each word in the phrase “lawfully made
under this title.” The word “made” signifies that the conduct at
issue is the creation or manufacture of a copy. See Webster’s Third
New International Dictionary 1356 (1961) (defining “made” as
“artificially produced by a manufacturing process”). The word
“lawfully” indicates that for §109(a) to apply, the copy’s creation
must have complied with some body of law. Finally, the
prepositional phrase “under this title” clarifies what that body of
law is—namely, the copyright prescriptions contained in Title 17 of
the U. S. Code. 5 Attempting to show that
my reading of §109(a) is susceptible to the same criticism, the
Court points to the now-repealed “manufacturing clause,” which
required “copies of a work consisting preponderantly of nondramatic
literary material . . . in the English language” to be
“manufactured in the United States or Canada.” Copyright Act of
1976, §601(a), 90Stat. 2588. Because Congress expressly referred to
manufacturing in this provision, the Court contends, the phrase
“lawfully made under this title” in §109(a) cannot mean
“manufactured in the United States.” Ante , at 19. This
argument is a non sequitur. I do not contend that the
phrases “lawfully made under this title” and “manufactured in the
United States” are interchangeable. To repeat, I read the phrase
“lawfully made under this title” as referring to instances in which
a copy’s creation is governed by, and conducted in compliance with,
Title 17 of the U. S. Code. See supra , at 6. Not all
copies “manufactured in the United States” will satisfy this
standard. For example, piratical copies manufactured in the United
States without the copyright owner’s authorization are not
“lawfully made under [Title 17].” Nor would the phrase “lawfully
manufactured in the United States” be an exact substitute for
“lawfully made under this title.” The making of a copy may be
lawful under Title 17 yet still violate some other provision of
law. Consider, for example, a copy made with the copyright owner’s
authorization by workers who are paid less than minimum wage. The
copy would be “lawfully made under [Title 17]” in the sense that
its creation would not violate any provision of that title, but the
copy’s manufacturing would nonetheless be unlawful due to the
violation of the minimum-wage laws. 6 When §602(a)(1) was
originally enacted in 1976, it played an additional role—providing
a private cause of action against importers of piratical goods. See Quality King , 523 U. S., at 146. In 2008, however,
Congress amended §602 to provide for such a cause of action in
§602(a)(2), which prohibits the unauthorized “[i]mportation into
the United States . . . of copies or phonorecords, the
making of which either constituted an infringement of copyright, or
which would have constituted an infringement of copyright if [Title
17] had been applicable.” See PROIPA, §105(b)(3), 122Stat.
4259–4260. Thus, under the Court’s interpretation, the only conduct
reached by §602(a)(1) but not §602(a)(2) is a nonowner’s
unauthorized importation of a nonpiratical copy. 7 Notably, the Court
ignores the history of §602(a)(1), which reveals that the primary
purpose of the prescription was not to provide a remedy against
rogue licensees, consignees, and bailees, against whom copyright
owners could frequently assert breach-of-contract claims even in
the absence of §602(a)(1). Instead, the primary purpose of
§602(a)(1) was to reach third-party importers, enterprising actors
like Kirtsaeng, against whom copyright owners could not assert
contract claims due to lack of privity. See Part III, infra . 8 Section 602(a)(3)
provides: “This subsection [ i.e. , §602(a)] does not apply
to— “(A) importation or exportation of copies or phonorecords under
the authority or for the use of the Government of the United States
or of any State or political subdivision of a State, but not
including copies or phonorecords for use in schools, or copies of
any audiovisual work imported for purposes other than archival use;
“(B) importation or exportation, for the private use of the
importer or exporter and not for distribution, by any person with
respect to no more than one copy or phonorecord of any one work at
any one time, or by any person arriving from outside the United
States or departing from the United States with respect to copies
or phonorecords forming part of such person’s personal baggage; or
“(C) importation by or for an organization operated for scholarly,
educational, or religious purposes and not for private gain, with
respect to no more than one copy of an audiovisual work solely for
its archival purposes, and no more than five copies or phonorecords
of any other work for its library lending or archival purposes,
unless the importation of such copies or phonorecords is part of an
activity consisting of systematic reproduction or distribution,
engaged in by such organization in violation of the provisions of
section 108(g)(2).” 9 The term “gray market
good” refers to a good that is “imported outside the distribution
channels that have been contractually negotiated by the
intellectual property owner.” Forsyth & Rothnie, Parallel
Imports, in The Interface Between Intellectual Property Rights and
Competition Policy 429 (S. Anderman ed. 2007). Such goods are also
commonly called “parallel imports.” Ibid. 10 The
Court asserts that its reading of §109(a) is bolstered by §104,
which extends the copyright “protection[s]” of Title 17 to a wide
variety of foreign works. See ante , at 10–11. The
“protection under this title” afforded by §104, however, is merely
protection against infringing conduct within the United States, the
only place where Title 17 applies. See 4 W. Patry, Copyright
§13:44.10, pp. 13–128 to 13–129 (2012) (hereinafter Patry).
Thus, my reading of the phrase “under this title” in §109(a) is
consistent with Congress’ use of that phrase in §104. Furthermore,
§104 describes which works are entitled to copyright
protection under U. S. law. But no one disputes that Wiley’s
copyrights in the works at issue in this case are valid. The only
question is whether Kirtsaeng’s importation of copies of
those works infringed Wiley’s copyrights. It is basic to copyright
law that “[o]wnership of a copyright . . . is distinct
from ownership of any material object in which the work is
embodied.” 17 U. S. C. §202. See also §101
(“ ‘Copies’ are material objects, other than phonorecords, in
which a work is fixed by any method now known or later developed,
and from which the work can be perceived, reproduced, or otherwise
communicated, either directly or with the aid of a machine or
device.”). Given the distinction copyright law draws between works
and copies, §104 is inapposite to the question here presented. 4
Patry §13:44.10, at 13–129 (“There is no connection,
linguistically or substantively, between Section[s] 104 and 109:
Section 104 deals with national eligibility for the intangible work of authorship; Section 109(a) deals with the tangible , physical embodiment of the work, the
‘copy.’ ”). 11 As
the Court observes, ante , at 29, Irwin Karp of the Authors
League of America stated at the 1964 panel discussion that §44(a)
ran counter to “the very basic concept of copyright law that, once
you’ve sold a copy legally, you can’t restrict its resale.”
Copyright Law Revision Part 4, at 212. When asked if he was
“presenting . . . an argument against” §44(a), however,
Karp responded that he was “neutral on th[e] provision.” Id. , at 211. There is thus little reason to believe that any
changes to the wording of §44(a) before its codification in §602(a)
were made in response to Karp’s discussion of “the problem of
restricting [the] transfer of . . . lawfully obtained
[foreign] copies.” Ibid. 12 There
is but one difference between this language from the 1965 bill and
the corresponding language in the current version of §602(a)(1): In
the current version, the phrase “for the purpose of distribution to
the public” is omitted and the phrase “that have been acquired
outside the United States” appears in its stead. There are no
material differences between the quoted language from the 1965 bill
and the corresponding language contained in the 1964 bill. See
Copyright Law Revision Part 6: Supplementary Report of the Register
of Copyrights on the General Revision of the U. S. Copyright
Law: 1965 Revision Bill, 89th Cong., 1st Sess., 292–293 (H. R.
Judiciary Comm. Print 1965). 13 The
Court purports to find support for its position in the House and
Senate Committee Reports on the 1976 Copyright Act. Ante , at
30–31. It fails to come up with anything in the Act’s legislative
history, how-ever, showing that Congress understood the words
“lawfully made under this title” in §109(a) to encompass
foreign-made copies. 14 Chiappetta, The Desirability of
Agreeing to Disagree: The WTO, TRIPS, International IPR Exhaustion
and a Few Other Things, 21 Mich. J. Int’l L. 333, 340 (2000)
(hereinafter Chiappetta) (internal quotation marks
omitted). 15 The
Court states that my “reliance on the Solicitor General’s position
in Quality King is undermined by his agreement in that case
with [the] reading of §109(a)” that the Court today adopts. Ante, at 33. The United States’ principal concern in both Quality King and this case, however, has been to protect
copyright owners’ “right to prevent parallel imports.” Brief for
United States as Amicus Curiae in Quality King , O. T.
1997, No. 96–1470, p. 6 (hereinafter Quality King Brief). See also Brief for United States as Amicus Curiae 14
(arguing that Kirtsaeng’s interpretation of §109(a), which the
Court adopts, would “subver[t] Section 602(a)(1)’s ban on
unauthorized importation”). In Quality King , the Solicitor
General urged this Court to hold that §109(a)’s codification of the
first sale doctrine does not limit the right to control importation
set forth in §602(a). Quality King Brief 7–30. After Quality King rejected that contention, the United States
reconsidered its position, and it now endorses the interpretation
of the §109(a) phrase “lawfully made under this title” I would
adopt. Brief for United States as Amicus Curiae 6–7,
13–14. 16 Congress hardly lacks capacity to
provide for international exhaustion when that is its intent.
Indeed, Congress has expressly provided for international
exhaustion in the narrow context of semiconductor chips embodying
protected “mask works.” See 17 U. S. C. §§905(2), 906(b).
See also 2 M. Nimmer & D. Nimmer, Copyright §8A.06[E],
p. 8A–37 (2012) (hereinafter Nimmer) (“[T]he first sale
doctrine under [§906(b)] expressly immunizes unauthorized
importation.”). 17 Despite the Court’s suggestion to the
contrary, this case in noway implicates the per se antitrust
prohibition against horizontal “ ‘[a]greements between
competitors to allocate territories to minimize
competition.’ ” Ante , at 32 (quoting Palmer v. BRG of Ga., Inc. , 498 U.S.
46 , 49 (1990) ( per curiam )). Wiley is not requesting
authority to enter into collusive agreements with other textbook
publishers that would, for example, make Wiley the exclusive
supplier of textbookson particular subjects within particular
geographic regions. Instead, Wiley asserts no more than the
prerogative to impose vertical restraints on the
distribution of its own textbooks. See Hovenkamp, Post-Sale
Restraints and Competitive Harm: The First Sale Doctrine in
Perspective, 66 N. Y. U. Ann. Survey Am. L. 487, 488
(2011) (“vertical restraints” include “limits [on] the way a
seller’s own product can be distributed”). 18 As
the Court observes, ante, at 32–33, the United States stated
at oral argument that the types of “horribles” predicted in the
Court’s opinion would, if they came to pass, be “worse than the
frustration of market segmentation” that will result from the
Court’s interpretation of §109(a). Tr. of Oral Arg. 51. The United
States, however, recognized that this purported dilemma is a false
one. As the United States explained, the Court’s horribles can be
avoided while still giving meaningful effect to §602(a)(1)’s ban on
unauthorized importation. Ibid. 19 It
appears that the Copyright Act of 1976 omitted the word “vend” and
introduced the word “distribute” to avoid the “redundan[cy]”
present in pre-1976 law. Copyright Law Revision: Report of the
Register of Copyrights on the General Revision of the U. S.
Copyright Law, 87th Cong., 1st Sess., 21 (H. R. Judiciary
Comm. Print 1961) (noting that the exclusive rights to “publish”
and “vend” works under the Copyright Act of 1947, §1(a), 61Stat.
652–653, were “redundant”). 20 My
position that Bobbs-Merrill lives on as a limiting
construction of the §106(3) distribution right does not leave
§109(a) with no work to do. There can be little doubt that the
books at issue in Bobbs-Merrill were published and first
sold in the United States. See Bobbs-Merrill Co. v. Straus , 139 F. 155, 157 (CC SDNY 1905) (the publisher
claiming copy-right infringement in Bobbs-Merrill was
incorporated and had its principal office in Indiana). See also
Copyright Act of 1891, §3, 26Stat. 1107–1108 (generally prohibiting
importation, even by the copyright owner, of foreign-manufactured
copies of copyrighted books); 4 Patry §13:40, at 13–111 (under
the Copyright Act of 1891, “copies of books by both foreign and U. S. authors had to be printed in the United
States”). But cf. ante , at 18 (asserting, without
acknowledging the 1891 Copyright Act’s general prohibition against
the importation of foreign-made copies of copyrighted books, that
the Court is unable to find any “geographical distinctions
. . . in Bobbs-Merrill ”). Thus, exhaustion occurs
under Bobbs-Merrill only when a copy is distributed within
the United States with the copyright owner’s permission, not when
it is distributed abroad. But under §109(a), as interpreted in Quality King , any authorized distribution of a
U. S.-made copy, even a distribution occurring in a foreign
country, exhausts the copyright owner’s distribution right under
§106(3). See 523 U. S., at 145, n. 14. Section 109(a)
therefore provides for exhaustion in a circumstance not reached by Bobbs-Merrill . 21 Section 41 of the 1909 Act provided:
“[N]othing in this Act shall be deemed to forbid, prevent, or
restrict the transfer of any copy of a copyrighted work the
possession of which has been lawfully obtained.” 35Stat. 1084. This
language was repeated without material change in §27 of the
Copyright Act of 1947, 61Stat. 660. As noted above, see supra , at 2, 17 U. S. C. §109(a) sets out the
current codification of the first sale doctrine. 22 A
group of amici representing libraries expresses the
concernthat lower courts might interpret §602(a)(3)(C) as
authorizing onlythe importing, but not the lending, of foreign-made
copies ofnon-audiovisual works. See Brief for American Library
Associationet al. 20. The United States maintains, and I agree,
however, that §602(a)(3)(C) “is fairly (and best) read as
implicitly authorizing lending, in addition to importation, of all
works other than audiovisual works.” Brief for United States as Amicus Curiae 30, n. 6. 23 Title
17 U. S. C. §109(c) provides: “Notwithstanding the
provisions of section 106(5), the owner of a particular copy
lawfully made under this title, or any person authorized by such
owner, is entitled, without the authority of the copyright owner,
to display that copy publicly, either directly or by the projection
of no more than one image at a time, to viewers present at the
place where the copy is located.” 24 The
word “copy,” as it appears in §109(c), applies to the original of a
work of art because the Copyright Act defines the term “copies” to
“includ[e] the material object . . . in which the work is
first fixed.” §101. 25 Principles of fair use and implied
license may also allow a U. S. tourist “who buys a copyrighted
work of art, a poster, or . . . a bumper sticker” abroad
to publicly “display it in America without the copyright owner’s
further authorization.” Ante , at 15. (The tourist could
lawfully bring the work of art, poster, or bumper sticker into the
United States under 17 U. S. C. §602(a)(3)(B), which
provides that §602(a)(1)’s importation ban does not apply to
“importation . . . by any person arriving from outside
the United States . . . with respect to copies
. . . forming part of such person’s personal baggage.”).
Furthermore, an individual clearly would not incur liability for
infringement merely by displaying a foreign-made poster or other
artwork in her home. See §106(5) (granting the owners of copyrights
in “literary, musical, dramatic, and choreographic works,
pantomimes, and pictorial, graphic, or sculptural works” the
exclusive right “to display the copyrighted work publicly ”
(emphasis added)). See also §101 (a work is displayed “publicly” if
it is displayed “at a place open to the public or at any place
where a substantial number of persons outside of a normal circle
of a family and its social acquaintances is gathered” (emphasis
added)). Cf. 2 Nimmer §8.14[C][1], at 8–192.2(1) (“[A]
performance limited to members ofthe family and invited guests is
not a public performance.” (footnote omitted)). 26 Exerting extensive control over
secondary markets may not always be in a manufacturer’s best
interest. Carmakers, for example, often trumpet the resale value of
their vehicles. See, e.g. , Nolan, UD grad leads Cadillac
marketing, Dayton Daily News, Apr. 2, 2009, p. A8 (“Cadillac plays
up its warranty coverage and reliable resale value to prospective
customers.”). If the transaction costs of reselling vehicles were
to rise, consumers’ perception of a new car’s value, and thus the
price they are willing to pay for such a car, might fall—an outcome
hardly favorable to automobile manufacturers. 27 It
should not be overlooked that the ability to prevent importation of
foreign-made copies encourages copyright owners such as Wiley to
offer copies of their works at reduced prices to consumers in less
developed countries who might otherwise be unable to afford them.
The Court’s holding, however, prevents copyright owners from
barring the importation of such low-priced copies into the United
States, where they will compete with the higher priced editions
copyright owners make available for sale in this country. To
protect their profit margins in the U. S. market, copyright
owners may raise prices in less developed countries or may withdraw
from such markets altogether. See Brief for United States as Amicus Curiae 26; Brief for Text and Academic Authors
Association as Amicus Curiae 12; Brief for Association of
American Publishers as Amicus Curiae 37. See also Chiappetta
357–358 (a rule of national exhaustion “encourages entry and
participation in developing markets at lower, locally more
affordable prices by eliminating them as risky sources of cheaper
parallel imports back into premium markets”). Such an outcome would
disserve consumers—and especially students—in developing nations
and would hardly advance the “American foreign policy goals” of
supporting education and economic development in such countries. Quality King Brief 25–26.