Lawfully Made?

     As many of you may know, SCOTUS heard oral arguments regarding Copyright Law's First Sale Doctrine back in November when the rest of Washington was shut down because of Hurricane Sandy. 

     Here's a little primer. 

     While it is impermissible under 17 U.S.C 106 to import a work "without the authority of the owner" of a copyright, the First Sale Doctrine codified in 17 U.S.C 109, allows the owner of a copy "lawfully made under this title" to sell or otherwise dispose of the copy without the copyright owner's permission. 
  
     Could this case come down to grammar? Which word or words does "under this title" modify? The kid who had his family buy cheaper textbooks in Asia, which he then resold in the US without the copyright owner's permission and for a profit would have "under this title" apply to "lawfully." On the other hand, the textbook publisher would have "under this title" apply to both "lawfully" and "made" such that that the First Sale Doctrine applies only to copies made in the US.  What do you think?

     And talk about a Circuit split:

• The Second Circuit agrees with the publisher and would never allow  foreign-made products to be resold in the US without the copyright owner's permission.
• The Third Circuit has indicated that a foreign-made product can always be resold without the copyright owner's permission so long as the copyright owner authorized the first sale abroad
• The Ninth Circuit held that a foreign-made product can sometimes be resold within the US without the copyright owner's permission, but only after the copyright owner approves an earlier sale in this country.

     We won't know when SCOTUS will hand down its opinion, but several folks have a stake in the outcome. It's the Overstockers and librarians versus the publishing and record/movie industries! See:  Supreme Court Copyright Case Could Change Nature of Ownership

     Photo (CC) Supreme Court by Mark Fischer