1 See App. 64 (declaration of Robert De Lanza).

2 See id., at 70-83.

3 L'anza'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.

4 The doctrine had been consistently applied by other federal courts in earlier cases. See Kipling v. G. P. Putnam's Sons, 120 F. 631, 634 (CA2 1903); Doan v. American Book Co., 105 F. 772, 776 (CA7 1901); Harrison v. Maynard, Merrill & Co., 61 F. 689, 691 (CA2 1894); Bobbs-Merrill Co. v. Snellenburg, 131 F. 530, 532 (ED Pa. 1904); Clemens v. Estes, 22 F. 899, 900 (Mass. 1885); Stowe v. Thomas , 23 F. Cas. 201, 206-207 (ED Pa. 1853).

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.

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.

8 The 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).

9 The comparable section in the 1909 and 1947 Acts provided that “nothing in this Act shall be deemed to forbid, prevent, or restrict the transfer of any copy of a copyrighted work the possession of which has been lawfully obtained.” Copyright Act of 1909, 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).

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 any one work at any one 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).” 1

12 See n. 8, supra.

13 See text accompanying n. 9, supra . 1.

14 Despite L'anza'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.

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.

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 (H. R. Judiciary Comm. Print 1963) (statement of Mr. Sargoy), quoted in 98 F. 3d 1109, 1116 (CA9 1996).

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“).

21 The strength of the implication created by the relevant language in §106A is not diminished by the fact that Congress enacted §106A more 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.“

23 The §602(a) exceptions, which are substantially narrower than §107, would not permit such importation. See n. 11, supra.

24 L'anza'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 - including 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.

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).

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.

29 Presumably L'anza, 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 differnd name.

30 The Solicitor General advises us that such agreements have been made with Cambodia, Trinidad and Tobago, Jamaica, Ecuador, and Sri Lanka.

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.