Feist Publications, Inc. v. Rural Telephone Service Co., Inc.

U.S. Supreme Court Feist Pubs., Inc. v. Rural Tel. Svc.
Co., Inc., 499
U.S. 340 (1991) Feist Publications, Inc. v. Rural
Telephone Service Company, Inc. No. 89-1909 Argued Jan. 9, 1991 Decided March 27,
1991 499
U.S. 340 CERTIORARI TO THE UNITED STATES
COURT OF APPEALS FOR THE TENTH
CIRCUIT Syllabus Respondent Rural Telephone Service Company is a certified public
utility providing telephone service to several communities in
Kansas. Pursuant to state regulation, Rural publishes a typical
telephone directory, consisting of white pages and yellow pages. It
obtains data for the directory from subscribers, who must provide
their names and addresses to obtain telephone service. Petitioner
Feist Publications, Inc., is a publishing company that specializes
in area-wide telephone directories covering a much larger
geographic range than directories such as Rural's. When Rural
refused to license its white pages listings to Feist for a
directory covering 11 different telephone service areas, Feist
extracted the listings it needed from Rural's directory without
Rural's consent. Although Feist altered many of Rural's listings,
several were identical to listings in Rural's white pages. The
District Court granted summary judgment to Rural in its copyright
infringement suit, holding that telephone directories are
copyrightable. The Court of Appeals affirmed. Held: Rural's white pages are not entitled to
copyright, and therefore Feist's use of them does not constitute
infringement. Pp. 499 U. S.
344 -364.

															(a) Article I, § 8, cl. 8, of the Constitution mandates
originality as a prerequisite for copyright protection. The
constitutional requirement necessitates independent creation plus a
modicum of creativity. Since facts do not owe their origin to an
act of authorship, they are not original, and thus are not
copyrightable. Although a compilation of facts may possess the
requisite originality because the author typically chooses which
facts to include, in what order to place them, and how to arrange
the data so that readers may use them effectively, copyright
protection extends only to those components of the work that are
original to the author, not to the facts themselves. This
fact/expression dichotomy severely limits the scope of protection
in fact-based works. Pp. 499 U. S.
344 -351.

															(b) The Copyright Act of 1976 and its predecessor, the Copyright
Act of 1909, leave no doubt that originality is the touchstone of
copyright protection in directories and other fact-based works. The
1976 Act explains that copyright extends to "original works of
authorship," 17 U.S.C. § 102(a), and that there can be no copyright
in facts, § 102(b). Page 499 U. S. 341 A compilation is not copyrightable per se, but is
copyrightable only if its facts have been "selected, coordinated,
or arranged in such a way that the resulting work as a
whole constitutes an original work of authorship." § 101 (emphasis
added). Thus, the statute envisions that some ways of selecting,
coordinating, and arranging data are not sufficiently original to
trigger copyright protection. Even a compilation that is
copyrightable receives only limited protection, for the copyright
does not extend to facts contained in the compilation. § 103(b).
Lower courts that adopted a "sweat of the brow" or "industrious
collection" test -- which extended a compilation's copyright
protection beyond selection and arrangement to the facts themselves
-- misconstrued the 1909 Act and eschewed the fundamental axiom of
copyright law that no one may copyright facts or ideas. Pp. 499 U. S.
351 -361.

															(c) Rural's white pages do not meet the constitutional or
statutory requirements for copyright protection. While Rural has a
valid copyright in the directory as a whole because it contains
some forward text and some original material in the yellow pages,
there is nothing original in Rural's white pages. The raw data are
uncopyrightable facts, and the way in which Rural selected,
coordinated, and arranged those facts is not original in any way.
Rural's selection of listings -- subscribers' names, towns, and
telephone numbers -- could not be more obvious, and lacks the
modicum of creativity necessary to transform mere selection into
copyrightable expression. In fact, it is plausible to conclude that
Rural did not truly "select" to publish its subscribers' names and
telephone numbers, since it was required to do so by state law.
Moreover, there is nothing remotely creative about arranging names
alphabetically in a white pages directory. It is an age-old
practice, firmly rooted in tradition and so commonplace that it has
come to be expected as a matter of course. Pp. 499 U. S.
361 -364.

															916 F.2d 718 (CA 10 1990), reversed.

															O'CONNOR J., delivered the opinion of the Court, in which
REHNQUIST, C.J., and WHITE, MARSHALL, STEVENS, SCALIA, KENNEDY, and
SOUTER, JJ., joined. BLACKMUN, J., concurred in the judgment. Page 499 U. S. 342 JUSTICE O'CONNOR delivered the opinion of the Court.

															This case requires us to clarify the extent of copyright
protection available to telephone directory white pages. I Rural Telephone Service Company is a certified public utility
that provides telephone service to several communities in northwest
Kansas. It is subject to a state regulation that requires all
telephone companies operating in Kansas to issue annually an
updated telephone directory. Accordingly, as a condition of its
monopoly franchise, Rural publishes a typical Page 499 U. S. 343 telephone directory, consisting of white pages and yellow pages.
The white pages list in alphabetical order the names of Rural's
subscribers, together with their towns and telephone numbers. The
yellow pages list Rural's business subscribers alphabetically by
category, and feature classified advertisements of various sizes.
Rural distributes its directory free of charge to its subscribers,
but earns revenue by selling yellow pages advertisements.

															Feist Publications, Inc., is a publishing company that
specializes in area-wide telephone directories. Unlike a typical
directory, which covers only a particular calling area, Feist's
area-wide directories cover a much larger geographical range,
reducing the need to call directory assistance or consult multiple
directories. The Feist directory that is the subject of this
litigation covers 11 different telephone service areas in 15
counties and contains 46,878 white pages listings -- compared to
Rural's approximately 7,700 listings. Like Rural's directory,
Feist's is distributed free of charge and includes both white pages
and yellow pages. Feist and Rural compete vigorously for yellow
pages advertising.

															As the sole provider of telephone service in its service area,
Rural obtains subscriber information quite easily. Persons desiring
telephone service must apply to Rural and provide their names and
addresses; Rural then assigns them a telephone number. Feist is not
a telephone company, let alone one with monopoly status, and
therefore lacks independent access to any subscriber information.
To obtain white pages listings for its area-wide directory, Feist
approached each of the 11 telephone companies operating in
northwest Kansas and offered to pay for the right to use its white
pages listings.

															Of the 11 telephone companies, only Rural refused to license its
listings to Feist. Rural's refusal created a problem for Feist, as
omitting these listings would have left a gaping hole in its
area-wide directory, rendering it less attractive to potential
yellow pages advertisers. In a decision subsequent to that which we
review here, the District Court determined that this was precisely
the reason Rural refused to license its listings. The refusal was
motivated by an unlawful purpose "to extend its monopoly in
telephone service to a monopoly in yellow pages advertising." Rural Telephone Service Co. v. Feist Publications, Inc., 737 F.
Supp. 610 , 622 (Kan.1990).

															Unable to license Rural's white pages listings, Feist used them
without Rural's consent. Feist began by removing several thousand
listings that fell outside the geographic range of its area-wide
directory, then hired personnel to investigate the 4,935 that
remained. These employees verified Page 499 U. S. 344 the data reported by Rural and sought to obtain additional
information. As a result, a typical Feist listing includes the
individual's street address; most of Rural's listings do not.
Notwithstanding these additions, however, 1,309 of the 46,878
listings in Feist's 1983 directory were identical to listings in
Rural's 1982-1983 white pages. App. 54 (15-16), 57. Four of these
were fictitious listings that Rural had inserted into its directory
to detect copying.

															Rural sued for copyright infringement in the District Court for
the District of Kansas, taking the position that Feist, in
compiling its own directory, could not use the information
contained in Rural's white pages. Rural asserted that Feist's
employees were obliged to travel door-to-door or conduct a
telephone survey to discover the same information for themselves.
Feist responded that such efforts were economically impractical
and, in any event, unnecessary, because the information copied was
beyond the scope of copyright protection. The District Court
granted summary judgment to Rural, explaining that "[c]ourts have
consistently held that telephone directories are copyrightable" and
citing a string of lower court decisions. 663 F.
Supp. 214 , 218 (1987). In an unpublished opinion, the Court of
Appeals for the Tenth Circuit affirmed "for substantially the
reasons given by the district court." App. to Pet. for Cert. 4a,
judgt. order reported at 916 F.2d 718 (1990). We granted
certiorari, 498 U.S. 808 (1990), to determine whether the copyright
in Rural's directory protects the names, towns, and telephone
numbers copied by Feist. II A This case concerns the interaction of two well-established
propositions. The first is that facts are not copyrightable; the
other, that compilations of facts generally are. Each of these
propositions possesses an impeccable pedigree. That there can be no
valid copyright in facts is universally understood. The most
fundamental axiom of copyright law is that Page 499 U. S. 345 "[n]o author may copyright his ideas or the facts he narrates." Harper & Row, Publishers, Inc. v. Nation Enterprises, 471 U. S. 539 , 471 U. S. 556 (1985). Rural wisely concedes this point, noting in its brief that
"[f]acts and discoveries, of course, are not themselves subject to
copyright protection." Brief for Respondent 24. At the same time,
however, it is beyond dispute that compilations of facts are within
the subject matter of copyright. Compilations were expressly
mentioned in the Copyright Act of 1909, and again in the Copyright
Act of 1976.

															There is an undeniable tension between these two propositions.
Many compilations consist of nothing but raw data -- i.e., wholly factual information not accompanied by any original written
expression. On what basis may one claim a copyright in such a work?
Common sense tells us that 100 uncopyrightable facts do not
magically change their status when gathered together in one place.
Yet copyright law seems to contemplate that compilations that
consist exclusively of facts are potentially within its scope.

															The key to resolving the tension lies in understanding why facts
are not copyrightable. The sine qua non of copyright is
originality. To qualify for copyright protection, a work must be
original to the author. See Harper Row, supra, at 471 U. S.
547 -549. Original, as the term is used in copyright,
means only that the work was independently created by the author
(as opposed to copied from other works), and that it possesses at
least some minimal degree of creativity. 1 M. Nimmer & D.
Nimmer, Copyright §§ 2.01[A], [B] (1990) (hereinafter Nimmer). To
be sure, the requisite level of creativity is extremely low; even a
slight amount will suffice. The vast majority of works make the
grade quite easily, as they possess some creative spark, "no matter
how crude, humble or obvious" it might be. Id. §
1.08[C][1]. Originality does not signify novelty; a work may be
original even though it closely resembles other works, so long as
the similarity is fortuitous, not the result of copying. To
illustrate, Page 499 U. S. 346 assume that two poets, each ignorant of the other, compose
identical poems. Neither work is novel, yet both are original and,
hence, copyrightable. See Sheldon v. Metro-Goldwyn Pictures
Corp., 81 F.2d 49, 54 (CA2 1936).

															Originality is a constitutional requirement. The source of
Congress' power to enact copyright laws is Article I, § 8, cl. 8,
of the Constitution, which authorizes Congress to "secur[e] for
limited Times to Authors . . . the exclusive Right to their
respective Writings." In two decisions from the late 19th Century
-- The Trade-Mark Cases, 100 U. S. 82 (1879); and Burrow-Giles Lithographic Co. v. Sarony, 111 U. S. 53 (1884)
-- this Court defined the crucial terms "authors" and "writings."
In so doing, the Court made it unmistakably clear that these terms
presuppose a degree of originality.

															In The Trade-Mark Cases, the Court addressed the
constitutional scope of "writings." For a particular work to be
classified "under the head of writings of authors," the Court
determined, "originality is required." 100 U.S. at 100 U. S. 94 .
The Court explained that originality requires independent creation
plus a modicum of creativity:

															"[W]hile the word writings may be liberally construed,
as it has been, to include original designs for engraving, prints,
&c., it is only such as are original, and are founded
in the creative powers of the mind. The writings which are to be
protected are the fruits of intellectual labor, embodied
in the form of books, prints, engravings, and the like." Ibid. (emphasis in original).

															In Burrow-Giles, the Court distilled the same
requirement from the Constitution's use of the word "authors." The
Court defined "author," in a constitutional sense, to mean "he to
whom anything owes its origin; originator; maker." 111 U.S. at 111 U. S. 58 (internal quotations omitted). As in The Trade-Mark Cases, the Court emphasized the creative component of originality. It
described copyright as being limited to "original intellectual
conceptions of the author," ibid., and stressed the
importance of requiring an author who accuses another of
infringement to prove "the existence Page 499 U. S. 347 of those facts of originality, of intellectual production, of
thought, and conception." Id. 111 U.S. at 111 U. S.
590 .

															The originality requirement articulated in The Trade-Mark
Cases and Burrow-Giles remains the touchstone of
copyright protection today. See Goldstein v. California, 412 U. S. 546 , 412 U. S.
561 -562 (1973). It is the very "premise of copyright
law." Miller v. Universal City Studios, Inc., 650 F.2d
1365, 1368 (CA5 1981). Leading scholars agree on this point. As one
pair of commentators succinctly puts it: "The originality
requirement is constitutionally mandated for all works."
Patterson & Joyce, Monopolizing the Law: The Scope of Copyright
Protection for Law Reports and Statutory Compilations, 36 UCLA
L.Rev. 719, 763, n. 155 (1989) (emphasis in original) (hereinafter
Patterson & Joyce). Accord, id. at 759-760, and n.
140; Nimmer § 1.06[A] ("originality is a statutory as well as a
constitutional requirement"); id. § 1.08[C][1] ("a modicum
of intellectual labor . . . clearly constitutes an essential
constitutional element").

															It is this bedrock principle of copyright that mandates the
law's seemingly disparate treatment of facts and factual
compilations. "No one may claim originality as to facts." Id. § 2.11[A], p. 2-157. This is because facts do not owe
their origin to an act of authorship. The distinction is one
between creation and discovery: the first person to find and report
a particular fact has not created the fact; he or she has merely
discovered its existence. To borrow from Burrow-Giles, one
who discovers a fact is not its "maker" or "originator." 111 U.S.
at 111 U. S. 58 .
"The discoverer merely finds and records." Nimmer § 2.03[E].
Census-takers, for example, do not "create" the population figures
that emerge from their efforts; in a sense, they copy these figures
from the world around them. Denicola, Copyright in Collections of
Facts: A Theory for the Protection of Nonfiction Literary Works, 81
Colum.L.Rev. 516, 525 (1981) (hereinafter Denicola). Census data
therefore do not trigger copyright, because these data are not
"original" in the constitutional sense. Nimmer Page 499 U. S. 348 § 2.03[E]. The same is true of all facts -- scientific,
historical, biographical, and news of the day. "[T]hey may not be
copyrighted, and are part of the public domain available to every
person." Miller, supra, at 1369.

															Factual compilations, on the other hand, may possess the
requisite originality. The compilation author typically chooses
which facts to include, in what order to place them, and how to
arrange the collected data so that they may be used effectively by
readers. These choices as to selection and arrangement, so long as
they are made independently by the compiler and entail a minimal
degree of creativity, are sufficiently original that Congress may
protect such compilations through the copyright laws. Nimmer §§
2.11[D], 3.03; Denicola 523, n. 38. Thus, even a directory that
contains absolutely no protectible written expression, only facts,
meets the constitutional minimum for copyright protection if it
features an original selection or arrangement. See Harper &
Row, 471 U.S. at 471 U. S. 547 . Accord, Nimmer § 3.03.

															This protection is subject to an important limitation. The mere
fact that a work is copyrighted does not mean that every element of
the work may be protected. Originality remains the sine qua
non of copyright; accordingly, copyright protection may extend
only to those components of a work that are original to the author.
Patterson & Joyce 800-802; Ginsburg, Creation and Commercial
Value: Copyright Protection of Works of Information, 90
Colum.L.Rev. 1865, 1868, and n. 12 (1990) (hereinafter Ginsburg).
Thus, if the compilation author clothes facts with an original
collocation of words, he or she may be able to claim a copyright in
this written expression. Others may copy the underlying facts from
the publication, but not the precise words used to present them. In Harper & Row, for example, we explained that President
Ford could not prevent others from copying bare historical facts
from his autobiography, see 471 U.S. at 471 U. S.
556 -557, but that he could prevent others from copying
his "subjective descriptions and portraits of public figures." Page 499 U. S. 349 Id. at 471 U. S. 563 .
Where the compilation author adds no written expression, but rather
lets the facts speak for themselves, the expressive element is more
elusive. The only conceivable expression is the manner in which the
compiler has selected and arranged the facts. Thus, if the
selection and arrangement are original, these elements of the work
are eligible for copyright protection. See Patry,
Copyright in Compilations of Facts (or Why the "White Pages" Are
Not Copyrightable), 12 Com. & Law 37, 64 (Dec.1990)
(hereinafter Patry). No matter how original the format, however,
the facts themselves do not become original through association. See Patterson & Joyce 776.

															This inevitably means that the copyright in a factual
compilation is thin. Notwithstanding a valid copyright, a
subsequent compiler remains free to use the facts contained in
another's publication to aid in preparing a competing work, so long
as the competing work does not feature the same selection and
arrangement. As one commentator explains it:

															"[N]o matter how much original authorship the work displays, the
facts and ideas it exposes are free for the taking. . . . [T]he
very same facts and ideas may be divorced from the context imposed
by the author, and restated or reshuffled by second comers, even if
the author was the first to discover the facts or to propose the
ideas."

															Ginsburg 1868.

															It may seem unfair that much of the fruit of the compiler's
labor may be used by others without compensation. As Justice
Brennan has correctly observed, however, this is not "some
unforeseen byproduct of a statutory scheme." Harper &
Row, 471 U.S. at 471 U. S. 589 (dissenting opinion). It is, rather, "the essence of copyright," ibid. and a constitutional requirement. The primary
objective of copyright is not to reward the labor of authors, but
"[t]o promote the Progress of Science and useful Arts." Art. I, §
8, cl. 8. Accord, Twentieth Century Music Corp. v. Aiken, 422 U. S. 151 , 422 U. S. 156 (1975). To this end, copyright assures authors the right to their
original Page 499 U. S. 350 expression, but encourages others to build freely upon the ideas
and information conveyed by a work. Harper & Row,
supra, 471 U.S. at 471 U. S.
556 -557. This principle, known as the idea/expression or
fact/expression dichotomy, applies to all works of authorship. As
applied to a factual compilation, assuming the absence of original
written expression, only the compiler's selection and arrangement
may be protected; the raw facts may be copied at will. This result
is neither unfair nor unfortunate. It is the means by which
copyright advances the progress of science and art.

															This Court has long recognized that the fact/expression
dichotomy limits severely the scope of protection in fact-based
works. More than a century ago, the Court observed:

															"The very object of publishing a book on science or the useful
arts is to communicate to the world the useful knowledge which it
contains. But this object would be frustrated if the knowledge
could not be used without incurring the guilt of piracy of the
book." Baker v. Selden, 101 U. S. 99 , 101 U. S. 103 (1880). We reiterated this point in Harper & Row: "[N]o author may copyright facts or ideas. The copyright is
limited to those aspects of the work -- termed 'expression' -- that
display the stamp of the author's originality."

															"[C]opyright does not prevent subsequent users from copying from
a prior author's work those constituent elements that are not
original -- for example . . . facts, or materials in the public
domain -- as long as such use does not unfairly appropriate. the
author's original contributions."

															471 U.S. at 471 U. S.
547 -548 (citation omitted).

															This, then, resolves the doctrinal tension: Copyright treats
facts and factual compilations in a wholly consistent manner.
Facts, whether alone or as part of a compilation, are not original,
and therefore may not be copyrighted. A factual compilation is
eligible for copyright if it features an original selection or
arrangement of facts, but the copyright is limited to Page 499 U. S. 351 the particular selection or arrangement. In no event may
copyright extend to the facts themselves. B As we have explained, originality is a constitutionally mandated
prerequisite for copyright protection. The Court's decisions
announcing this rule predate the Copyright Act of 1909, but
ambiguous language in the 1909 Act caused some lower courts
temporarily to lose sight of this requirement.

															The 1909 Act embodied the originality requirement, but not as
clearly as it might have. See Nimmer § 2.01. The subject
matter of copyright was set out in § 3 and § 4 of the Act. Section
4 stated that copyright was available to "all the writings of an
author." 35 Stat. 1076. By using the words "writings" and "author"
-- the same words used in Article I, § 8 of the Constitution and
defined by the Court in The Trade-Mark Cases and Burrow-Giles -- the statute necessarily incorporated the
originality requirement articulated in the Court's decisions. It
did so implicitly, however, thereby leaving room for error.

															Section 3 was similarly ambiguous. It stated that the copyright
in a work protected only "the copyrightable component parts of the
work." It thus stated an important copyright principle, but failed
to identify the specific characteristic -- originality -- that
determined which component parts of a work were copyrightable and
which were not.

															Most courts construed the 1909 Act correctly, notwithstanding
the less-than-perfect statutory language. They understood from this
Court's decisions that there could be no copyright without
originality. See Patterson & Joyce 760-761. As
explained in the Nimmer treatise:

															"The 1909 Act neither defined originality nor even expressly
required that a work be 'original' in order to command protection.
However, the courts uniformly inferred the requirement from the
fact that copyright protection may only be claimed by 'authors.' .
. . It was reasoned that, since an author is 'the . . . Page 499 U. S. 352 creator, originator,' it follows that a work is not the product
of an author unless the work is original."

															Nimmer § 2.01 (footnotes omitted) (citing cases).

															But some courts misunderstood the statute. See, e.g., Leon
v. Pacific Telephone & Telegraph Co., 91 F.2d 484 (CA9
1937); Jeweler's Circular Publishing Co. v. Keystone Publishing
Co., 281 F. 83 (CA2 1922). These courts ignored § 3 and § 4,
focusing their attention instead on § 5 of the Act. Section 5,
however, was purely technical in nature: it provided that a person
seeking to register a work should indicate on the application the
type of work, and it listed 14 categories under which the work
might fall. One of these categories was "[b]ooks, including
composite and cyclopoedic works, directories, gazetteers, and other
compilations." § 5(a). Section 5 did not purport to say that all
compilations were automatically copyrightable. Indeed, it expressly
disclaimed any such function, pointing out that "the subject matter
of copyright [i]s defined in section four." Nevertheless, the fact
that factual compilations were mentioned specifically in § 5 led
some courts to infer erroneously that directories and the like were
copyrightable per se, "without any further or precise
showing of original -- personal -- authorship." Ginsburg 1895.

															Making matters worse, these courts developed a new theory to
justify the protection of factual compilations. Known alternatively
as "sweat of the brow" or "industrious collection," the underlying
notion was that copyright was a reward for the hard work that went
into compiling facts. The classic formulation of the doctrine
appeared in Jeweler's Circular Publishing Co., 281 F. at
88:

															"The right to copyright a book upon which one has expended labor
in its preparation does not depend upon whether the materials which
he has collected consist or not of matters which are publici
juris, or whether such materials show literary skill or
originality, either in thought or in language, or anything
more than industrious Page 499 U. S. 353 collection. The man who goes through the streets of a town and
puts down the names of each of the inhabitants, with their
occupations and their street number acquires material of which he
is the author."

															(Emphasis added).

															The "sweat of the brow" doctrine had numerous flaws, the most
glaring being that it extended copyright protection in a
compilation beyond selection and arrangement -- the compiler's
original contributions -- to the facts themselves. Under the
doctrine, the only defense to infringement was independent
creation. A subsequent compiler was "not entitled to take one word
of information previously published," but rather had to
"independently wor[k] out the matter for himself, so as to arrive
at the same result from the same common sources of information." Id. at 88-89 (internal quotations omitted). "Sweat of the
brow" courts thereby eschewed the most fundamental axiom of
copyright law -- that no one may copyright facts or ideas. See
Miller v. Universal City Studios, Inc., 650 F.2d at 1372
(criticizing "sweat of the brow" courts because "ensur[ing] that
later writers obtain the facts independently . . . is precisely the
scope of protection given . . . copyrighted matter, and the law is
clear that facts are not entitled to such protection").

															Decisions of this Court applying the 1909 Act make clear that
the statute did not permit the "sweat of the brow" approach. The
best example is International News Service v. Associated
Press, 248 U. S. 215 (1918). In that decision, the Court stated unambiguously that the
1909 Act conferred copyright protection only on those elements of a
work that were original to the author. International News Service
had conceded taking news reported by Associated Press and
publishing it in its own newspapers. Recognizing that § 5 of the
Act specifically mentioned "[p]eriodicals, including newspapers," §
5(b), the Court acknowledged that news articles were copyrightable. Id. at 248 U. S. 234 .
It flatly rejected, however, the notion that the copyright in an
article extended to Page 499 U. S. 354 the factual information it contained:

															"[T]he news element -- the information respecting current events
contained in the literary production -- is not the creation of the
writer, but is a report of matters that ordinarily are publici
juris; it is the history of the day." Ibid. * Without a doubt, the "sweat of the brow" doctrine flouted basic
copyright principles. Throughout history, copyright law has
"recognize[d] a greater need to disseminate factual works than
works of fiction or fantasy." Harper & Row, 471 U.S.
at 471 U. S. 563 . Accord, Gorman, Fact or Fancy: The Implications for
Copyright, 29 J.Copyright Soc. 560, 563 (1982). But "sweat of the
brow" courts took a contrary view; they handed out proprietary
interests in facts and declared that authors are absolutely
precluded from saving time and effort by relying upon the facts
contained in prior works. In truth, "[i]t is just such wasted
effort that the proscription against the copyright of ideas and
facts . . . [is] designed to prevent." Rosemont Enterprises,
Inc. v. Random House, Inc., 366 F.2d 303, 310 (CA2 1966), cert. denied 385 U.S. 1009 (1967).

															"Protection for the fruits of such research . . . may, in
certain circumstances, be available under a theory of unfair
competition. But to accord copyright protection on this basis alone
distorts basic copyright principles in that it creates a monopoly
in public domain materials without the necessary justification of
protecting and encouraging the creation of 'writings' by
'authors.'"

															Nimmer § 3.04, p. 3-23 (footnote omitted). C "Sweat of the brow" decisions did not escape the attention of
the Copyright Office. When Congress decided to overhaul the
copyright statute and asked the Copyright Office to study existing
problems, see Mills Music, Inc. v. Snyder, 469 U.
S. 153 , 469 U. S. 159 (1985), the Copyright Office promptly recommended Page 499 U. S. 355 that Congress clear up the confusion in the lower courts as to
the basic standards of copyrightability. The Register of Copyrights
explained in his first report to Congress that "originality" was a
"basic requisit[e]" of copyright under the 1909 Act, but that "the
absence of any reference to [originality] in the statute seems to
have led to misconceptions as to what is copyrightable matter."
Report of the Register of Copyrights on the General Revision of the
U.S. Copyright Law, 87th Cong., 1st Sess., p. 9 (H. Judiciary Comm.
Print 1961). The Register suggested making the originality
requirement explicit. Ibid. Congress took the Register's advice. In enacting the Copyright
Act of 1976, Congress dropped the reference to "all the writings of
an author" and replaced it with the phrase "original works of
authorship." 17 U.S.C. § 102(a). In making explicit the originality
requirement, Congress announced that it was merely clarifying
existing law:

															"The two fundamental criteria of copyright protection [are]
originality and fixation in tangible form. . . . The phrase
'original works of authorship,' which is purposely left undefined,
is intended to incorporate without change the standard of
originality established by the courts under the present [1909]
copyright statute. "

															H.R.Rep. No. 94-1476, p. 51 (1976) (emphasis added) (hereinafter
H.R.Rep.); S.Rep. No. 94-473, p. 50 (1975), U.S.Code Cong. &
Admin.News 1976, pp. 5659, 5664 (emphasis added) (hereinafter
S.Rep.). This sentiment was echoed by the Copyright Office: "Our
intention here is to maintain the established standards of
originality. . . ." Supplementary Report of the Register of
Copyrights on the General Revision of U.S. Copyright Law, 89th
Cong., 1st Sess., Part 6, p. 3 (H. Judiciary Comm. Print 1965)
(emphasis added).

															To ensure that the mistakes of the "sweat of the brow" courts
would not be repeated, Congress took additional measures. For
example, § 3 of the 1909 Act had stated that copyright protected
only the "copyrightable component parts" of a work, but had not
identified originality as the basis for distinguishing Page 499 U. S. 356 those component parts that were copyrightable from those that
were not. The 1976 Act deleted this section and replaced it with §
102(b), which identifies specifically those elements of a work for
which copyright is not available:

															"In no case does copyright protection for an original work of
authorship extend to any idea, procedure, process, system, method
of operation, concept, principle, or discovery, regardless of the
form in which it is described, explained, illustrated, or embodied
in such work."

															§ 102(b) is universally understood to prohibit any copyright in
facts. Harper Row, supra, at 471 U. S. 547 , 471 U. S. 556 . Accord, Nimmer § 2.03[E] (equating facts with
"discoveries"). As with § 102(a), Congress emphasized that § 102(b)
did not change the law, but merely clarified it:

															"Section 102(b) in no way enlarges or contracts the scope of
copyright protection under the present law. Its purpose is to
restate . . . that the basic dichotomy between expression and idea
remains unchanged."

															H.R.Rep. at 57; S.Rep. at 54, U.S.Code Cong. & Admin.News
1976, p. 5670.

															Congress took another step to minimize confusion by deleting the
specific mention of "directories . . . and other compilations" in §
5 of the 1909 Act. As mentioned, this section had led some courts
to conclude that directories were copyrightable per se, and that every element of a directory was protected. In its place,
Congress enacted two new provisions. First, to make clear that
compilations were not copyrightable per se, Congress
provided a definition of the term "compilation." Second, to make
clear that the copyright in a compilation did not extend to the
facts themselves, Congress enacted 17 U.S.C. § 103.

															The definition of "compilation" is found in § 101 of the 1976
Act. It defines a "compilation" in the copyright sense as

															"a work formed by the collection and assembly of preexisting
materials or of data that are selected, coordinated, or
arranged in such a way that the resulting work, as a
whole, constitutes an original work of authorship."

															(Emphasis added.) Page 499 U. S. 357 The purpose of the statutory definition is to emphasize that
collections of facts are not copyrightable per se. It
conveys this message through its tripartite structure, as
emphasized above by the italics. The statute identifies three
distinct elements, and requires each to be met for a work to
qualify as a copyrightable compilation: (1) the collection and
assembly of preexisting material, facts, or data; (2) the
selection, coordination, or arrangement of those materials; and (3)
the creation, by virtue of the particular selection, coordination,
or arrangement, of an "original" work of authorship. "[T]his
tripartite conjunctive structure is self-evident, and should be
assumed to accurately express the legislative purpose.'" Patry
51, quoting Mills Music, 469 U.S. at 469 U. S.
164 . At first glance, the first requirement does not seem to tell us
much. It merely describes what one normally thinks of as a
compilation -- a collection of preexisting material, facts, or
data. What makes it significant is that it is not the sole requirement. It is not enough for copyright purposes that an author
collects and assembles facts. To satisfy the statutory definition,
the work must get over two additional hurdles. In this way, the
plain language indicates that not every collection of facts
receives copyright protection. Otherwise, there would be a period
after "data."

															The third requirement is also illuminating. It emphasizes that a
compilation, like any other work, is copyrightable only if it
satisfies the originality requirement ("an original work
of authorship"). Although § 102 states plainly that the originality
requirement applies to all works, the point was emphasized with
regard to compilations to ensure that courts would not repeat the
mistake of the "sweat of the brow" courts by concluding that
fact-based works are treated differently and measured by some other
standard. As Congress explained it, the goal was to

															"make plain that the criteria of copyrightable subject matter
stated in section 102 apply with full force to works . . .
containing preexisting material."

															H.R.Rep. at 57; S.Rep. at 55. Page 499 U. S. 358 The key to the statutory definition is the second requirement.
It instructs courts that, in determining whether a fact-based work
is an original work of authorship, they should focus on the manner
in which the collected facts have been selected, coordinated, and
arranged. This is a straightforward application of the originality
requirement. Facts are never original, so the compilation author
can claim originality, if at all, only in the way the facts are
presented. To that end, the statute dictates that the principal
focus should be on whether the selection, coordination, and
arrangement are sufficiently original to merit protection.

															Not every selection, coordination, or arrangement will pass
muster. This is plain from the statute. It states that, to merit
protection, the facts must be selected, coordinated, or arranged
"in such a way" as to render the work as a whole original. This
implies that some "ways" will trigger copyright, but that others
will not. See Patry 57, and n. 76. Otherwise, the phrase
"in such a way" is meaningless, and Congress should have defined
"compilation" simply as "a work formed by the collection and
assembly of preexisting materials or data that are selected,
coordinated, or arranged." That Congress did not do so is
dispositive. In accordance with "the established principle that a
court should give effect, if possible, to every clause and word of
a statute," Moskal v. United States, 498 U.
S. 103 , 498 U. S.
109 -110 (1990) (internal quotations omitted), we
conclude that the statute envisions that there will be some
fact-based works in which the selection, coordination, and
arrangement are not sufficiently original to trigger copyright
protection.

															As discussed earlier, however, the originality requirement is
not particularly stringent. A compiler may settle upon a selection
or arrangement that others have used; novelty is not required.
Originality requires only that the author make the selection or
arrangement independently ( i.e., without copying that
selection or arrangement from another work), and that it display
some minimal level of creativity. Presumably, Page 499 U. S. 359 the vast majority of compilations will pass this test, but not
all will. There remains a narrow category of works in which the
creative spark is utterly lacking or so trivial as to be virtually
nonexistent. See generally Bleistein v. Donaldson Lithographing
Co., 188 U. S. 239 , 188 U. S. 251 (1903) (referring to "the narrowest and most obvious limits"). Such
works are incapable of sustaining a valid copyright. Nimmer §
2.01[B].

															Even if a work qualifies as a copyrightable compilation, it
receives only limited protection. This is the point of § 103 of the
Act. Section 103 explains that "[t]he subject matter of copyright .
. . includes compilations," § 103(a), but that copyright protects
only the author's original contributions -- not the facts or
information conveyed:

															"The copyright in a compilation . . . extends only to the
material contributed by the author of such work, as distinguished
from the preexisting material employed in the work, and does not
imply any exclusive right in the preexisting material."

															§ 103(b).

															As § 103 makes clear, copyright is not a tool by which a
compilation author may keep others from using the facts or data he
or she has collected.

															"The most important point here is one that is commonly
misunderstood today: copyright . . . has no effect one way or the
other on the copyright or public domain status of the preexisting
material."

															H.R.Rep. at 57; S.Rep. at 55, U.S.Code Cong. & Admin.News
1976, p. 5670. The 1909 Act did not require, as "sweat of the brow"
courts mistakenly assumed, that each subsequent compiler must start
from scratch, and is precluded from relying on research undertaken
by another. See, e.g., Jeweler's Circular publishing Co., 281 F., at 88-89. Rather, the facts contained in existing works may
be freely copied, because copyright protects only the elements that
owe their origin to the compiler -- the selection, coordination,
and arrangement of facts.

															In summary, the 1976 revisions to the Copyright Act leave no
doubt that originality, not "sweat of the brow," is the Page 499 U. S. 360 touchstone of copyright protection in directories and other
fact-based works. Nor is there any doubt that the same was true
under the 1909 Act. The 1976 revisions were a direct response to
the Copyright Office's concern that many lower courts had
misconstrued this basic principle, and Congress emphasized
repeatedly that the purpose of the revisions was to clarify, not
change, existing law. The revisions explain with painstaking
clarity that copyright requires originality, § 102(a); that facts
are never original, § 102(b); that the copyright in a compilation
does not extend to the facts it contains, § 103(b); and that a
compilation is copyrightable only to the extent that it features an
original selection, coordination, or arrangement, § 101.

															The 1976 revisions have proven largely successful in steering
courts in the right direction. A good example is Miller v.
Universal City Studios, Inc., 650 F.2d at 1369-1370:

															"A copyright in a directory . . . is properly viewed as resting
on the originality of the selection and arrangement of the factual
material, rather than on the industriousness of the efforts to
develop the information. Copyright protection does not extend to
the facts themselves, and the mere use of information contained in
a directory without a substantial copying of the format does not
constitute infringement."

															(Citation omitted.) Additionally, the Second Circuit, which
almost 70 years ago issued the classic formulation of the "sweat of
the brow" doctrine in Jeweler's Circular Publishing Co., has now fully repudiated the reasoning of that decision. See,
e.g., Financial Information, Inc. v. Moody's Investors Service,
Inc., 808 F.2d 204, 207 (CA2 1986), cert. denied, 484
U.S. 820 (1987); Financial Information, Inc. v. Moody's
Investors Service, Inc., 751 F.2d 501, 510 (CA2 1984) (Newman,
J., concurring); Hoehling v. Universal City Studios, Inc., 618 F.2d 972, 979 (CA2 1980). Even those scholars who believe that
"industrious collection" should be rewarded seem to recognize that
this is beyond the scope of existing copyright law. See Denicola 516 ("the very vocabulary of copyright is ill-suited Page 499 U. S. 361 to analyzing property rights in works of nonfiction"); id. at 520-521, 525; Ginsburg 1867, 1870. III There is no doubt that Feist took from the white pages of
Rural's directory a substantial amount of factual information. At a
minimum, Feist copied the names, towns, and telephone numbers of
1,309 of Rural's subscribers. Not all copying, however, is
copyright infringement. To establish infringement, two elements
must be proven: (1) ownership of a valid copyright, and (2) copying
of constituent elements of the work that are original. See
Harper & Row, 471 U.S. at 471 U. S. 548 .
The first element is not at issue here; Feist appears to concede
that Rural's directory, considered as a whole, is subject to a
valid copyright because it contains some foreword text, as well as
original material in its yellow pages advertisements. See Brief for Petitioner 18; Pet. for Cert. 9.

															The question is whether Rural has proved the second element. In
other words, did Feist, by taking 1,309 names, towns, and telephone
numbers from Rural's white pages, copy anything that was "original"
to Rural? Certainly, the raw data does not satisfy the originality
requirement. Rural may have been the first to discover and report
the names, towns, and telephone numbers of its subscribers, but
this data does not " ow[e] its origin'" to Rural. Burrow-Giles, 111 U.S. at 111 U. S. 58 .
Rather, these bits of information are uncopyrightable facts; they
existed before Rural reported them, and would have continued to
exist if Rural had never published a telephone directory. The
originality requirement "rule[s] out protecting . . . names, addresses, and telephone
numbers of which the plaintiff, by no stretch of the imagination,
could be called the author."

															Patterson & Joyce 776.

															Rural essentially concedes the point by referring to the names,
towns, and telephone numbers as "preexisting material." Brief for
Respondent 17. Section 103(b) states explicitly Page 499 U. S. 362 that the copyright in a compilation does not extend to "the
preexisting material employed in the work."

															The question that remains is whether Rural selected,
coordinated, or arranged these uncopyrightable facts in an original
way. As mentioned, originality is not a stringent standard; it does
not require that facts be presented in an innovative or surprising
way. It is equally true, however, that the selection and
arrangement of facts cannot be so mechanical or routine as to
require no creativity whatsoever. The standard of originality is
low, but it does exist. See Patterson & Joyce 760, n.
144 ("While this requirement is sometimes characterized as modest,
or a low threshold, it is not without effect") (internal quotations
omitted; citations omitted). As this Court has explained, the
Constitution mandates some minimal degree of creativity, see
The Trade-Mark Cases, 100 U.S. at 100 U. S. 94 ,
and an author who claims infringement must prove "the existence of
. . . intellectual production, of thought, and conception." Burrow-Giles, supra, 111 U.S. at 111 U. S.
59 -60.

															The selection, coordination, and arrangement of Rural's white
pages do not satisfy the minimum constitutional standards for
copyright protection. As mentioned at the outset, Rural's white
pages are entirely typical. Persons desiring telephone service in
Rural's service area fill out an application, and Rural issues them
a telephone number. In preparing its white pages, Rural simply
takes the data provided by its subscribers and lists it
alphabetically by surname. The end product is a garden-variety
white pages directory, devoid of even the slightest trace of
creativity.

															Rural's selection of listings could not be more obvious: it
publishes the most basic information -- name, town, and telephone
number -- about each person who applies to it for telephone
service. This is "selection" of a sort, but it lacks the modicum of
creativity necessary to transform mere selection into copyrightable
expression. Rural expended sufficient effort Page 499 U. S. 363 to make the white pages directory useful, but insufficient
creativity to make it original.

															We note in passing that the selection featured in Rural's white
pages may also fail the originality requirement for another reason.
Feist points out that Rural did not truly "select" to publish the
names and telephone numbers of its subscribers; rather, it was
required to do so by the Kansas Corporation Commission as part of
its monopoly franchise. See 737 F. Supp. at 612.
Accordingly, one could plausibly conclude that this selection was
dictated by state law, not by Rural.

															Nor can Rural claim originality in its coordination and
arrangement of facts. The white pages do nothing more than list
Rural's subscribers in alphabetical order. This arrangement may,
technically speaking, owe its origin to Rural; no one disputes that
Rural undertook the task of alphabetizing the names itself. But
there is nothing remotely creative about arranging names
alphabetically in a white pages directory. It is an age-old
practice, firmly rooted in tradition and so commonplace that it has
come to be expected as a matter of course. See Brief for
Information Industry Association et al. as Amici
Curiae 10 (alphabetical arrangement "is universally observed
in directories published by local exchange telephone companies").
It is not only unoriginal, it is practically inevitable. This
time-honored tradition does not possess the minimal creative spark
required by the Copyright Act and the Constitution.

															We conclude that the names, towns, and telephone numbers copied
by Feist were not original to Rural, and therefore were not
protected by the copyright in Rural's combined white and yellow
pages directory. As a constitutional matter, copyright protects
only those constituent elements of a work that possess more than a de minimis quantum of creativity. Rural's white pages,
limited to basic subscriber information and arranged
alphabetically, fall short of the mark. As a statutory matter, 17
U.S.C. § 101 does not afford protection Page 499 U. S. 364 from copying to a collection of facts that are selected,
coordinated, and arranged in a way that utterly lacks originality.
Given that some works must fail, we cannot imagine a more likely
candidate. Indeed, were we to hold that Rural's white pages pass
muster, it is hard to believe that any collection of facts could
fail.

															Because Rural's white pages lack the requisite originality,
Feist's use of the listings cannot constitute infringement. This
decision should not be construed as demeaning Rural's efforts in
compiling its directory, but rather as making clear that copyright
rewards originality, not effort. As this Court noted more than a
century ago,

															"'great praise may be due to the plaintiffs for their industry
and enterprise in publishing this paper, yet the law does not
contemplate their being rewarded in this way.'" Baker v. Selden, 101 U.S. at 101 U. S.
105 .

															The judgment of the Court of Appeals is Reversed. JUSTICE BLACKMUN concurs in the judgment.

															* The Court ultimately rendered judgment for Associated Press on
noncopyright grounds that are not relevant here. See 248
U.S. at 248 U. S. 235 , 248 U. S.
241 -242.


Quality King Distributors, Inc. v. L'anza Research Int'l, Inc.

OCTOBER TERM, 1997

															Syllabus

															QUALITY KING DISTRIBUTORS, INC. v. L' ANZA RESEARCH
INTERNATIONAL, INC.

															CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH
CIRCUIT

															No. 96-1470. Argued December 8, 1997-Decided March 9, 1998

															Respondent Uanza, a California manufacturer, sells its hair care
products in this country exclusively to distributors who have
agreed to resell within limited geographic areas and only to
authorized retailers. Uanza promotes its domestic sales with
extensive advertising and special retailer training. In foreign
markets, however, it does not engage in comparable advertising or
promotion; its foreign prices are substantially lower than its
domestic prices. It appears that after Uanza's United Kingdom
distributor arranged for the sale of several tons of Uanza
products, affixed with copyrighted labels, to a distributor in
Malta, that distributor sold the goods to petitioner, which
imported them back into this country without Uanza's permission and
then resold them at discounted prices to unauthorized retailers.
Uanza filed suit, alleging that petitioner's actions violated
Uanza's exclusive rights under the Copyright Act of 1976 (Act), 17
U. S. C. §§ 106, 501, and 602, to reproduce and distribute the
copyrighted material in the United States. The District Court
rejected petitioner's "first sale" defense under § 109(a) and
entered summary judgment for Uanza. Concluding that § 602(a), which
gives copyright owners the right to prohibit the unauthorized
importation of copies, would be "meaningless" if § 109(a) provided
a defense, the Ninth Circuit affirmed. Held: The first sale doctrine endorsed in § 109(a) is
applicable to imported copies. Pp. 140-154.

															(a) In Bobbs-Merrill Co. v. Straus, 210 U. S. 339 , 349-350,
this Court held that the exclusive right to "vend" under the
copyright statute then in force applied only to the first sale of a
copyrighted work. Congress subsequently codified Bobbs-Merrill's first sale doctrine in the Act. Section
106(3) gives the copyright holder the exclusive right "to
distribute copies ... by sale or other transfer of ownership," but
§ 109(a) provides: "Notwithstanding ... [§ ]106(3), the owner of a
particular copy ... 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 .... " Although the first
sale doctrine prevents Uanza from treating unauthorized resales by
its domestic distributors as an infringement of the exclusive right
to distribute, Uanza claims that § 602(a), properly construed,
prohibits its foreign distributors from reselling 136 Syllabus

															its products to American vendors unable to buy from its domestic
distributors. Pp. 140-143.

															(b) The statutory language clearly demonstrates that the right
granted by § 602(a) is subject to § 109(a). Significantly, § 602(a)
does not categorically prohibit the unauthorized importation of
copyrighted materials, but provides that, with three exceptions,
such "[i]mportation ... is an infringement of the exclusive right
to distribute ... under [§ ]106 ... " Section 106 in turn expressly
states that all of the exclusive rights therein granted-including
the distribution right granted by subsection (3)-are limited by §§
107 through 120. One of those limitations is provided by § 109(a),
which expressly permits the owner of a lawfully made copy to sell
that copy "[n]otwithstanding the provisions of [§ ]106(3)." After
the first sale of a copyrighted item "lawfully made under this
title," any subsequent purchaser, whether from a domestic or a
foreign reseller, is obviously an "owner" of that item. Read
literally, § 109(a) unambiguously states that such an owner "is
entitled, without the authority of the copyright owner, to sell"
that item. Moreover, since § 602(a) merely provides that
unauthorized importation is an infringement of an exclusive right
"under [§ ]106," and since that limited right does not encompass
resales by lawful owners, § 602(a)'s literal text is simply
inapplicable to both domestic and foreign owners of Uanza's
products who decide to import and resell them here. Pp.
143-145.

															(c) The Court rejects Uanza's argument that § 602(a), and
particularly its exceptions, are superfluous if limited by the
first sale doctrine. The short answer is that this argument does
not adequately explain why the words "under [§ ]106" appear in §
602(a). Moreover, there are several flaws in Uanza's reasoning
that, because § 602(b) already prohibits the importation of
unauthorized or "piratical" copies, § 602(a) must cover
nonpiratical ("lawfully made") copies sold by the copyright owner.
First, even if § 602(a) applied only to piratical copies, it at
least would provide a private remedy against the importer, whereas
§ 602(b)'s enforcement is vested in the Customs Service. Second,
because § 109(a)'s protection is available only to the "owner" of a
lawfully made copy, the first sale doctrine would not provide a
defense to a § 602(a) action against a nonowner such as a bailee.
Third, § 602(a) applies to a category of copies that are neither
piratical nor "lawfully made under this title"; those that are
"lawfully made" under another country's law. Pp. 145-149.

															(d) Also rejected is Uanza's argument that because § 501(a)
defines an "infringer" as one "who violates ... [§ ]106 ... , or
who imports ... in violation of [§ ]602," a violation of the latter
type is distinct from one of the former, and thus not subject to §
109(a). This argument's force is outweighed by other statutory
considerations, including the fact that 137 § 602(a) unambiguously states that the prohibited importation is
an infringement "under [§ ]106," thereby identifying § 602
violations as a species of § 106 violations. More important is the
fact that the § 106 rights are subject to all of the provisions of
"[§§ ]107 through 120." If § 602(a) functioned independently, none
of those sections would limit its coverage. pp. 149-151.

															(e) The Court finds unpersuasive the Solicitor General's
argument that "importation" describes an act that is not protected
by § 109(a)'s authorization to a subsequent owner "to sell or
otherwise dispose of the possession of" a copy. An ordinary
interpretation of that language includes the right to ship the copy
to another person in another country. More important, the Solicitor
General's cramped reading is at odds with § 109(a)'s necessarily
broad reach. The whole point of the first sale doctrine is that
once the copyright owner places a copyrighted item in the stream of
commerce by selling it, he has exhausted his exclusive statutory
right to control its distribution. There is no reason to assume
that Congress intended § 109(a) to limit the doctrine's scope. Pp.
151-152.

															(f) The wisdom of protecting domestic copyright owners from the
unauthorized importation of validly copyrighted copies of their
works, and the fact that the Executive Branch has recently entered
into at least five international trade agreements apparently
intended to do just that, are irrelevant to a proper interpretation
of the Act. pp. 153-154. 98 F.3d
1109 , reversed.

															STEVENS, J., delivered the opinion for a unanimous Court.
GINSBURG, J., filed a concurring opinion, post, p. 154. Allen R. Snyder argued the cause for petitioner. With him
on the briefs were Jonathan S. Franklin, William Raymond H. Goettsch argued the cause and filed a brief
for respondent.

															Deputy Solicitor General Wallace argued the cause for the United
States as amicus curiae urging affirmance. With him on the brief
were Acting Solicitor General Waxman, Assistant Attorneys General
Hunger and Klein, Patricia A. Millett, Michael Jay Singer, and
Irene M. So let. *

															*Briefs of amici curiae urging reversal were filed for
the American Free Trade Association by Gilbert Lee Sandler and Jorge Espinosa; for Cosco Companies, Inc., et al. by Michael D. Sandler, Peter J. Kadzik, Rich- 138 JUSTICE STEVENS delivered the opinion of the Court. Section
106(3) of the Copyright Act of 1976 (Act), 17 U. S. C. § 106(3),
gives the owner of a copyright the exclusive right to distribute
copies of a copyrighted work. That exclusive right is expressly
limited, however, by the provisions of §§ 107 through 120. Section
602(a) gives the copyright owner the right to prohibit the
unauthorized importation of copies. The question presented by this
case is whether the right granted by § 602(a) is also limited by §§
107 through 120. More narrowly, the question is whether the "first
sale" doctrine endorsed in § 109(a) is applicable to imported
copies.

															I

															Respondent, L'anza Research International, Inc. (L'anza), is a
California corporation engaged in the business of manufacturing and
selling shampoos, conditioners, and other hair care products.
L'anza has copyrighted the labels that are affixed to those
products. In the United States, L'anza sells exclusively to
domestic distributors who have agreed to resell within limited
geographic areas and then only to authorized retailers such as
barber shops, beauty salons, and professional hair care colleges.
Uanza has found that the American "public is generally unwilling to
pay the price charged for high quality products, such as L'anza's
products, when they are sold along with the less expensive lower
quality products that are generally carried by supermarkets and

															ard Kelly, and Robert J. Verdisco; and for Jan-Bell Marketing,
Inc., by Michael J. Gaertner.

															Briefs of amici curiae urging affirmance were filed for
the American Intellectual Property Law Association by Arthur J. Levine and John N O'Shea; for the Beauty and
Barber Supply Institute Inc. et al. by Deborah M. Lodge; for
the National Consumers League et al. by Charles E. Buffon,
Caroline M. Brown, Jan S. Amundson, Quentin Riegel, and Daniel F. O'Keefe, Jr.; for the Recording Industry
Association of America et al. by Theodore B. Olson and Preeta D. Bansal; and for Swarovski America Limited by Werner Kronstein. 139 drug stores." App. 54 (declaration of Robert Hall). Uanza
promotes the domestic sales of its products with extensive
advertising in various trade magazines and at point of sale, and by
providing special training to authorized retailers.

															L'anza also sells its products in foreign markets. In those
markets, however, it does not engage in comparable advertising or
promotion; its prices to foreign distributors are 35% to 40% lower
than the prices charged to domestic distributors. In 1992 and 1993,
L'anza's distributor in the United Kingdom arranged the sale of
three shipments to a distributor in Malta; 1 each shipment
contained several tons of L'anza products with copyrighted labels
affixed.2 The record does not establish whether the initial
purchaser was the distributor in the United Kingdom or the
distributor in Malta, or whether title passed when the goods were
delivered to the carrier or when they arrived at their destination,
but it is undisputed that the goods were manufactured by L'anza and
first sold by Uanza to a foreign purchaser.

															It is also undisputed that the goods found their way back to the
United States without the permission of L'anza and were sold in
California by unauthorized retailers who had purchased them at
discounted prices from Quality King Distributors, Inc.
(petitioner). There is some uncertainty about the identity of the
actual importer, but for the purpose of our decision we assume that
petitioner bought all three shipments from the Malta distributor,
imported them, and then resold them to retailers who were not in
L'anza's authorized chain of distribution.

															After determining the source of the unauthorized sales, L'anza
brought suit against petitioner and several other defendants.3 The
complaint alleged that the importation and

															1 See App. 64 (declaration of Robert De Lanza). 2 See id., at
70-83.

															3 Uanza's claims against the retailer defendants were settled.
The Malta distributor apparently never appeared in this action and
a default judgment was entered against it. 140 subsequent distribution of those products bearing copyrighted
labels violated L'anza's "exclusive rights under 17 U. S. C. §§
106, 501 and 602 to reproduce and distribute the copyrighted
material in the United States." App. 32. The District Court
rejected petitioner's defense based on the "first sale" doctrine
recognized by § 109 and entered summary judgment in favor of
L'anza. Based largely on its conclusion that § 602 would be
"meaningless" if § 109 provided a defense in a case of this kind,
the Court of Appeals affirmed. 98 F.3d
1109 , 1114 (CA9 1996). Because its decision created a conflict
with the Third Circuit, see Sebastian Int'Z, Inc. v. Consumer Contacts (PTY) Ltd., 847 F.2d
1093 (1988), we granted the petition for certiorari. 520 U. S.
1250 (1997).

															II

															This is an unusual copyright case because L'anza does not claim
that anyone has made unauthorized copies of its copyrighted labels.
Instead, Uanza is primarily interested in protecting the integrity
of its method of marketing the products to which the labels are
affixed. Although the labels themselves have only a limited
creative component, our interpretation of the relevant statutory
provisions would apply equally to a case involving more familiar
copyrighted materials such as sound recordings or books. Indeed, we
first endorsed the first sale doctrine in a case involving a claim
by a publisher that the resale of its books at discounted prices
infringed its copyright on the books. Bobbs-Merrill Co. v. Straus, 210 U.
S. 339 (1908).4

															In that case, the publisher, Bobbs-Merrill, had inserted a
notice in its books that any retail sale at a price under

															4 The doctrine had been consistently applied by other federal
courts in earlier cases. See Kipling v. G. P. Putnam's
Sons, 120 F.6d
1 , 634 (CA2 1903); Doan v. American Book Co., 105 F.7d
2 , 776 (CA7 1901); Harrison v. Maynard,
Merrill & Co., 61 F.6d
9 , 691 (CA2 1894); Bobbs-Merrill Co. v. Snellenburg, 131 F.5d
0 , 532 (ED Pa. 1904); Clemens v. Estes, 22 F.8d
9 , 900 (Mass. 1885); Stowe v. Thomas, 23 F. Cas.
201, 206-207 (ED Pa. 1853). 141 $1 would constitute an infringement of its copyright. The
defendants, who owned Macy's department store, disregarded the
notice and sold the books at a lower price without Bobbs-Merrill's
consent. We held that the exclusive statutory right to "vend" 5
applied only to the first sale of the copyrighted work: "What does the statute mean in granting 'the sole right of
vending the same'? Was it intended to create a right which would
permit the holder of the copyright to fasten, by notice in a book
or upon one of the articles mentioned within the statute, 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? It is not denied that one who has sold a copyrighted
article, without restriction, has parted with all right to control
the sale of it. The 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. "In this case the stipulated facts show that the books sold by
the appellant were sold at wholesale, and purchased by those who
made no agreement as to the control of future sales of the book,
and took upon themselves no obligation to enforce the notice
printed in the book, undertaking to restrict retail sales to a
price of one dollar per copy." Id., at 349-350. The statute in force when Bobbs-Merrill was decided
provided that the copyright owner had the exclusive right to "vend"
the copyrighted work. 6 Congress subsequently cod-

															5 In 1908, when Bobbs-Merrill was decided, the copyright
statute provided that copyright owners had "the sole liberty of
printing, reprinting, publishing, completing, copying, executing,
finishing, and vending" their copyrighted works. Copyright
Act of 1891, § 4952, 26 Stat. 1107 (emphasis added).

															6 See n. 5, supra. 142 ified our holding in Bobbs-Merrill that the exclusive
right to "vend" was limited to first sales of the work.7 Under the
1976 Act, the comparable exclusive right granted in 17 U. S. C. §
106(3) is the right "to distribute copies ... by sale or other
transfer of ownership." 8 The comparable limitation on that right
is provided not by judicial interpretation, but by an express
statutory provision. Section 109(a) provides: "Notwithstanding the provisions of section 106(3), the owner of
a particular copy or phonorecord lawfully made under this title, or
any person authorized by such owner, is entitled, without the
authority of the copyright owner, to sell or otherwise dispose of
the possession of that copy or phonorecord .... " 9 7 Congress codified the first sale doctrine in § 41 of the
Copyright Act of 1909, ch. 320, 35 Stat. 1084, and again in §27 of
the 1947 Act, ch. 391, 61 Stat. 660.

															8The full text of § 106 reads as follows:

															"§ 106. Exclusive rights in copyrighted works

															"Subject to sections 107 through 120, the owner of copyright
under this

															title has the exclusive rights to do and to authorize any of the
following: "(1) to reproduce the copyrighted work in copies or
phonorecords;

															"(2) to prepare derivative works based upon the copyrighted
work;

															"(3) 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;

															"(4) in the case of literary, musical, dramatic, and
choreographic works, pantomimes, and motion pictures and other
audiovisual works, to perform the copyrighted work publicly;

															"(5) in the case of literary, musical, dramatic, and
choreographic works, pantomimes, and pictorial, graphic, or
sculptural works, including the individual images of a motion
picture or other audiovisual work, to display the copyrighted work
publicly; and

															"(6) in the case of sound recordings, to perform the copyrighted
work publicly by means of a digital audio transmission." 17 U. S.
C. § 106 (1994 ed., Supp. I).

															9The comparable section in the 1909 and 1947 Acts provided that
"nothing in this Act shall be deemed to forbid, prevent, or
restrict the transfer 143 The Bobbs-Merrill opinion emphasized the critical
distinction between statutory rights and contract rights.10 In this
case, L'anza relies on the terms of its contracts with its domestic
distributors to limit their sales to authorized retail outlets.
Because the basic holding in Bobbs-Merrill is now codified
in § l09(a) of the Act, and because those domestic distributors are
owners of the products that they purchased from Uanza (the labels
of which were "lawfully made under this title"), L'anza does not,
and could not, claim that the statute would enable Uanza to treat
unauthorized resales by its domestic distributors as an
infringement of its exclusive right to distribute copies of its
labels. Uanza does claim, however, that contractual provisions are
inadequate to protect it from the actions of foreign distributors
who may resell L'anza's products to American vendors unable to buy
from L'anza's domestic distributors, and that § 602(a) of the Act,
properly construed, prohibits such unauthorized competition. To
evaluate that submission, we must, of course, consider the text of
§ 602(a).

															III

															The most relevant portion of § 602(a) provides: "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 exclu- of any copy of a copyrighted work the possession of which has
been lawfully obtained." Copyright Act of 1909, ch. 320, § 41, 35
Stat. 1084; see also Copyright Act of 1947, ch. 391, §27, 61 Stat.
660. It is noteworthy that § 109(a) of the 1978 Act does not apply
to "any copy"; it applies only to a copy that was "lawfully made
under this title."

															10 "We do not think the statute can be given such a
construction, and it is to be remembered that this is purely a
question of statutory construction. There is no claim in this case
of contract limitation, nor license agreement controlling the
subsequent sales of the book." Bobbs-Merrill Co. v. Straus, 210 U.
S. 339 , 350 (1908). 144 sive right to distribute copies or phonorecords under section
106, actionable under section 501. ... " 11 It is significant that this provision does not categorically
prohibit the unauthorized importation of copyrighted materials.
Instead, it provides that such importation is an infringement of
the exclusive right to distribute copies "under section 106." Like
the exclusive right to "vend" that was construed in Bobbs-Merrill, the exclusive right to distribute is a
limited right. The introductory language in § 106 expressly states
that all of the exclusive rights granted by that section-including,
of course, the distribution right granted by subsection (3)-are
limited by the provisions of §§ 107 through 120.12 One of those
limitations, as we have noted, is provided by the terms of §
109(a), which expressly permit the owner of a lawfully made copy to
sell that copy "[n]otwithstanding the provisions of section
106(3)." 13

															11 The remainder of § 602(a) reads as follows:

															"This subsection does not apply to-

															"(1) importation 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;

															"(2) importation, for the private use of the importer and not
for distribution, by any person with respect to no more than one
copy or phonorecord of anyone work at anyone time, or by any person
arriving from outside the United States with respect to copies or
phonorecords forming part of such person's personal baggage; or

															"(3) 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)."

															12 See n. 8, supra.

															13 See text accompanying n. 9, supra. 145 After the first sale of a copyrighted item "lawfully made under
this title," any subsequent purchaser, whether from a domestic or
from a foreign reseller, is obviously an "owner" of that item. Read
literally, § 109(a) unambiguously states that such an owner "is
entitled, without the authority of the copyright owner, to sell"
that item. Moreover, since § 602(a) merely provides that
unauthorized importation is an infringement of an exclusive right
"under section 106," and since that limited right does not
encompass resales by lawful owners, the literal text of § 602(a) is
simply inapplicable to both domestic and foreign owners of L'anza's
products who decide to import them and resell them in the United
States.14

															Notwithstanding the clarity of the text of §§ 106(3), 109(a),
and 602(a), L'anza argues that the language of the Act supports a
construction of the right granted by § 602(a) as "distinct from the
right under Section 106(3) standing alone," and thus not subject to
§ 109(a). Brief for Respondent 15. Otherwise, Uanza argues, both
the § 602(a) right itself and its exceptions 15 would be
superfluous. Moreover, supported by various amici curiae, including the Solicitor General of the United States, L'anza
contends that its construction is supported by important policy
considerations. We consider these arguments separately.

															IV

															L'anza advances two primary arguments based on the text of the
Act: (1) that § 602(a), and particularly its three exceptions, are
superfluous if limited by the first sale doctrine; and (2) that the
text of § 501 defining an "infringer" refers

															14 Despite Uanza's contention to the contrary, see Brief for
Respondent 26-27, the owner of goods lawfully made under the Act is
entitled to the protection of the first sale doctrine in an action
in a United States court even if the first sale occurred abroad.
Such protection does not require the extraterritorial application
of the Act any more than § 602(a)'s "acquired abroad" language
does.

															15 See n. 11, supra. 146 separately to violations of § 106, on the one hand, and to
imports in violation of § 602. The short answer to both of these
arguments is that neither adequately explains why the words "under
section 106" appear in § 602(a). The Solicitor General makes an
additional textual argument: he contends that the word
"importation" in § 602(a) describes an act that is not protected by
the language in § 109(a) authorizing a subsequent owner "to sell or
otherwise dispose of the possession of" a copy. Each of these
arguments merits separate comment.

															The Coverage of § 602(a)

															Prior to the enactment of § 602(a), the Act already prohibited
the importation of "piratical," or unauthorized, copies.16
Moreover, that earlier prohibition is retained in § 602(b) of the
present ActP L'anza therefore argues (as do the Solicitor General
and other amici curiae) that § 602(a) is superfluous unless
it covers nonpiratical ("lawfully made") copies sold by the
copyright owner, because importation nearly always implies a first
sale. There are several flaws in this argument.

															First, even if § 602(a) did apply only to piratical copies, it
at least would provide the copyright holder with a private remedy
against the importer, whereas the enforcement of § 602(b) is vested
in the Customs Service.18 Second, because the protection afforded
by § 109(a) is available only to the "owner" of a lawfully made
copy (or someone authorized by the owner), the first sale doctrine
would not provide a de-

															16 See 17 U. S. C. §§ 106, 107 (1970).

															17 Section 602(b) provides in relevant part: "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 .... " The first sale doctrine of §
109(a) does not protect owners of piratical copies, of course,
because such copies were not "lawfully made."

															18 See n. 17, supra. 147 fense to a § 602(a) action against any nonowner such as a
bailee, a licensee, a consignee, or one whose possession of the
copy was unlawful.19 Third, § 602(a) applies to a category of
copies that are neither piratical nor "lawfully made under this
title." That category encompasses copies that were "lawfully made"
not under the United States Copyright Act, but instead, under the
law of some other country.

															The category of copies produced lawfully under a foreign
copyright was expressly identified in the deliberations that led to
the enactment of the 1976 Act. We mention one example of such a
comment in 1961 simply to demonstrate that the category is not a
merely hypothetical one. In a report to Congress, the Register of
Copyrights stated, in part: "When arrangements are made for both a U. S. edition and a
foreign edition of the same work, the publishers frequently agree
to divide the international markets. The foreign publisher agrees
not to sell his edition in the United States, and the U. S.
publisher agrees not to sell his edition in certain foreign
countries. It has been suggested that the import ban on piratical
copies should be extended to bar the importation of the foreign
edition in contravention of such an agreement." Copyright Law
Revision: Report of the Register of Copyrights on the General
Revision of the U. S. Copyright Law, 87th Cong., 1st Sess., 125-126
(H. R. Judiciary Comm. Print 1961). 19 In its opinion in this case, the Court of Appeals quoted a
statement by a representative of the music industry expressing the
need for protection against the importation of stolen motion
picture prints: "We've had a similar situation with respect to
motion picture prints, which are sent all over the world-legitimate
prints made from the authentic negative. These prints get into
illicit hands. They're stolen, and there's no contractual
relationship .... Now those are not piratical copies." Copyright
Law Revision Part 2: Discussion and Comments on Report of the
Register of Copyrights on General Revision of the U. S. Copyright
Law, 88th Cong., 1st Sess., 213 (R. R. Judiciary Comm. Print 1963)
(statement of Mr. Sargoy), quoted in 98 F.3d
1109 , 1116 (CA9 1996). 148 Even in the absence of a market allocation agreement between,
for example, a publisher of the United States edition and a
publisher of the British edition of the same work, each such
publisher could make lawful copies. If the author of the 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,20 however, presumably only those 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).

															The argument that the statutory exceptions to § 602(a) are
superfluous if the first sale doctrine is applicable rests on the
assumption that the coverage of that section is coextensive with
the coverage of § 109(a). But since it is, in fact, broader because
it encompasses copies that are not subject to the first sale
doctrine-e. g., copies that are lawfully made under the law of
another country-the exceptions do protect the traveler who may have
made an isolated purchase of a copy of a work that could not be
imported in bulk for purposes of resale. As we read the Act,
although both the first sale doctrine embodied in § 109(a) and the
exceptions in § 602(a) may

															20 A participant in a 1964 panel discussion expressed concern
about this particular situation. Copyright Law Revision Part 4:
Further Discussion and Comments on Preliminary Draft for Revised U.
S. Copyright Law, 88th Cong., 2d Sess., 119 (H. R. Judiciary Comm.
Print 1964) (statement of Mrs. Pilpel) ("For example, if someone
were to import a copy of the British edition of an American book
and the author had transferred exclusive United States and Canadian
rights to an American publisher, would that British edition be in
violation so that this would constitute an infringement under this
section?"); see also id., at 209 (statement of Mr. Manges)
(describing similar situation as "a troublesome problem that
confronts U. S. book publishers frequently"). 149 be applicable in some situations, the former does not subsume
the latter; those provisions retain significant independent
meaning.

															Section 501's Separate References to §§ 106 and 602

															The text of § 501 does lend support to L'anza's submission.

															In relevant part, it provides: "(a) Anyone who violates any of the exclusive rights of the
copyright owner as provided by sections 106 through 118 or of the
author as provided in section 106A(a), or who imports copies or
phonorecords into the United States in violation of section 602, is
an infringer of the copyright or right of the author, as the case
may be .... " The use of the words "or who imports," rather than words
such as "including one who imports," is more consistent with
an interpretation that a violation of § 602 is distinct from a
violation of § 106 (and thus not subject to the first sale doctrine
set out in § 109(a)) than with the view that it is a species of
such a violation. Nevertheless, the force of that inference is
outweighed by other provisions in the statutory text.

															Most directly relevant is the fact that the text of § 602(a)
itself unambiguously states that the prohibited importation is an
infringement of the exclusive distribution right "under section
106, actionable under section 501." Unlike that phrase, which
identifies § 602 violations as a species of § 106 violations, the
text of § 106A, which is also cross-referenced in § 501, uses
starkly different language. It states that the author's right
protected by § 106A is "independent of the exclusive rights
provided in Section 106." The contrast between the relevant
language in § 602 and that in § 106A strongly implies that only the
latter describes an independent right.21

															21 The strength of the implication created by the relevant
language in § 106A is not diminished by the fact that Congress
enacted § 106A more 150 Of even greater importance is the fact that the § 106 rights are
subject not only to the first sale defense in § 109(a), but also to
all of the other provisions of "sections 107 through 120." If §
602(a) functioned independently, none of those sections would limit
its coverage. For example, the "fair use" defense embodied in §
10722 would be unavailable to importers if § 602(a) created a
separate right not subject to the limitations on the § 106(3)
distribution right. Under L'anza's interpretation of the Act, it
presumably would be unlawful for a distributor to import copies of
a British newspaper that contained a book review quoting excerpts
from an American

															recently than § 602(a), which is part of the Copyright Act of
1976. Section 106A was passed as part of the Visual Artists Rights
Act of 1990 in order to protect the moral rights of certain visual
artists. Section 106A is analogous to Article 6bis of the
Berne Convention for the Protection of Literary and Artistic Works,
but its coverage is more limited. See 2 P. Goldstein, Copyright §
5.12, p. 5:225 (2d ed. 1996) (§ 106A encompasses aspects of the
moral rights guaranteed by Article 6bis of the Berne
Convention, "but effectively gives these rights a narrow subject
matter and scope").

															22 Title 17 U. S. C. § 107 provides as follows:

															"§ 107. Limitations on exclusive rights: Fair use

															"Notwithstanding the provisions of sections 106 and 106A, the
fair use of a copyrighted work, including such use by reproduction
in copies or phonorecords or by any other means specified by that
section, for purposes such as criticism, comment, news reporting,
teaching (including multiple copies for classroom use),
scholarship, or research, is not an infringement of copyright. In
determining whether the use made of a work in any particular case
is a fair use the factors to be considered shall include-

															"(1) the purpose and character of the use, including whether
such use is of a commercial nature or is for nonprofit educational
purposes;

															"(2) the nature of the copyrighted work;

															"(3) the amount and substantiality of the portion used in
relation to the copyrighted work as a whole; and

															"(4) the effect of the use upon the potential market for or
value of the copyrighted work.

															"The fact that a work is unpublished shall not itself bar a
finding of fair use if such finding is made upon consideration of
all the above factors." 151 novel protected by a United States copyright.23 Given the
importance of the fair use defense to publishers of scholarly
works, as well as to publishers of periodicals, it is difficult to
believe that Congress intended to impose an absolute ban on the
importation of all such works containing any copying of material
protected by a United States copyright.

															In the context of this case, involving copyrighted labels, it
seems unlikely that an importer could defend an infringement as a
"fair use" of the label. In construing the statute, however, we
must remember that its principal purpose was to promote the
progress of the "useful Arts," U. S. Const., Art. I, § 8, cl. 8, by
rewarding creativity, and its principal function is the protection
of original works, rather than ordinary commercial products that
use copyrighted material as a marketing aid. It is therefore
appropriate to take into account the impact of the denial of the
fair use defense for the importer of foreign publications. As
applied to such publications, L'anza's construction of § 602 "would
merely inhibit access to ideas without any countervailing benefit." Sony Corp. of America v. Universal City Studios, Inc.,
464 U. S. 417, 450-451 (1984).24

															Does an importer "sell or otherwise dispose" of copies as those
words are used in § 109(a)?

															Whether viewed from the standpoint of the importer or from that
of the copyright holder, the textual argument advanced by the
Solicitor General25-that the act of "im-

															23 The § 602(a) exceptions, which are substantially narrower
than § 107, would not permit such importation. See n. 11, supra. 24 Uanza's reliance on § 602(a)(3)'s reference to § 108(g)(2),
see n. 11, supra, to demonstrate that all of the other limitations set out in §§ 107 through 120-inc1uding
the first sale and fair use doctrines-do not apply to imported
copies is unavailing for the same reasons.

															25 See also Brief for Recording Industry Association of America
et al. 19-21. 152 portation" is neither a sale nor a disposal of a copy under §
l09(a)-is unpersuasive. Strictly speaking, an importer could, of
course, carry merchandise from one country to another without
surrendering custody of it. In a typical commercial transaction,
however, the shipper transfers "possession, custody, control and
title to the products" 26 to a different person, and L'anza assumes
that petitioner's importation of the L'anza shipments included such
a transfer. An ordinary interpretation of the statement that a
person is entitled "to sell or otherwise dispose of the possession"
of an item surely includes the right to ship it to another person
in another country.

															More important, the Solicitor General's cramped reading of the
text of the statutes is at odds not only with § 602(a)'s more
flexible treatment of unauthorized importation as an infringement
of the distribution right (even when there is no literal
"distribution"), but also with the necessarily broad reach of §
l09(a). The whole point of the first sale doctrine is that once the
copyright owner places a copyrighted item in the stream of commerce
by selling it, he has exhausted his exclusive statutory right to
control its distribution. As we have recognized, the codification
of that doctrine in § l09(a) makes it clear that the doctrine
applies only to copies that are "lawfully made under this title,"
but that was also true of the copies involved in the Bobbs-Merrill case, as well as those involved in the earlier
cases applying the doctrine. There is no reason to assume that
Congress intended either § l09(a) or the earlier codifications of
the doctrine to limit its broad scope.27

															In sum, we are not persuaded by either L'anza's or the Solicitor
General's textual arguments.

															26 App. 87.

															27 See, e. g., H. R. Rep. No. 1476, 94th Cong., 2d Sess.,
79 (1979) ("Section 109(a) restates and confirms" the first sale
doctrine established by prior case law); S. Rep. No. 473, 94th
Cong., 1st Sess., 71 (1975) (same). 153 V

															The parties and their amici have debated at length the
wisdom or unwisdom of governmental restraints on what is sometimes
described as either the "gray market" or the practice of "parallel
importation." 28 In K mart Corp. v. Cartier, Inc., 486 U. S. 281 (1988), we used those terms to refer to the importation of
foreign-manufactured goods bearing a valid United States trademark
without the consent of the trademark holder. Id., at
285-286. We are not at all sure that those terms appropriately
describe the consequences of an American manufacturer's decision to
limit its promotional efforts to the domestic market and to sell
its products abroad at discounted prices that are so low that its
foreign distributors can compete in the domestic market.29 But even
if they do, whether or not we think it would be wise policy to
provide statutory protection for such price discrimination is not a
matter that is relevant to our duty to interpret the text of the
Copyright Act.

															Equally irrelevant is the fact that the Executive Branch of the
Government has entered into at least five international trade
agreements that are apparently intended to protect domestic
copyright owners from the unauthorized importation of copies of
their works sold in those five countries.30 The earliest of those
agreements was made in 1991; none has been ratified by the Senate.
Even though they are of course

															28 Compare, for example, Gorelick & Little, The Case for
Parallel Importation, 11 N. C. J. Int'l L. & Comm. Reg. 205
(1986), with Gordon, Gray Market Is Giving Hair-Product Makers Gray
Hair, N. Y. Times, July 13, 1997, section 1, p. 28, col. 1.

															29Presumably Uanza, for example, could have avoided the
consequences of that competition either (1) by providing
advertising support abroad and charging higher prices, or (2) if it
was satisfied to leave the promotion of the product in foreign
markets to its foreign distributors, to sell its products abroad
under a different name.

															30 The Solicitor General advises us that such agreements have
been made with Cambodia, Trinidad and Tobago, Jamaica, Ecuador, and
Sri Lanka. 154 consistent with the position taken by the Solicitor General in
this litigation, they shed no light on the proper interpretation of
a statute that was enacted in 1976.31

															The judgment of the Court of Appeals is reversed.

															It is so ordered.

															JUSTICE GINSBURG, concurring.

															This case involves a "round trip" journey, travel of the copies
in question from the United States to places abroad, then back
again. I join the Court's opinion recognizing that we do not today
resolve cases in which the allegedly infringing imports were
manufactured abroad. See W. Patry, Copyright Law and Practice
166-170 (1997 Supp.) (commenting that provisions of Title 17 do not
apply extraterritorially unless expressly so stated, hence the
words "lawfully made under this title" in the "first sale"
provision, 17 U. S. C. § 109(a), must mean "lawfully made in the
United States"); see generally P. Goldstein, Copyright § 16.0, pp.
16:1-16:2 (2d ed. 1998) ("Copyright protection is territorial. The
rights granted by the United States Copyright Act extend no farther
than the nation's borders.").

															31 We also note that in 1991, when the first of the five
agreements was signed, the Third Circuit had already issued its
opinion in Sebastian Int'l, Inc. v. Consumer Contacts
(PTY) Ltd., 847 F.2d
1093 (1988), adopting a position contrary to that subsequently
endorsed by the Executive Branch.