BYPASSED: THE KIRTSAENG DECISION'S UNDERWHELMING IMPACT ON EXHAUSTION

摘要

The codification of the first sale principle in the Copyright Act established disparate paths in assessing exhaustion for copyrights and patents. Although the Kirtsaeng decision ruled in favor of international patent exhaustion, the divergence in the development of the law between the two disciplines of intellectual property works to preserve the differences between the application of the exhaustion doctrine between copyright and patents in the United States. Licensing will continue to be a useful tool to circumvent exhaustion, even for products first sold abroad. Moreover, it is unclear how long Kirtsaeng will remain good law, as the dissenting and concurring opinions from Kirtsaeng both noted that the majority opinion unduly narrows the importation prohibitions under the Copyright Act. In the foreseeable future, the Jazz Photo approach to the national exhaustion of patents is likely to persevere, and there is little likelihood of harmonizing the doctrines of patent exhaustion and copyright exhaustion in the near future. Intellectual property owners will look to construct their services in a way to optimize downstream control, especially in the realm of digital goods and services. More than likely, this will lead to a more robust jurisprudence as to when a transaction is a license versus a sale.