Foreign Noncommercial Activity

• Pages: 60-61

60 Volume 17, July–September 2011 international law update

© 2012 Transnational Law Associates, LLC. All rights reserved. ISSN 1089-5450, ISSN 1943-1287 (on-line) | www.internationallawupdate.com

King. ere, the Court reasoned, admittedly in

dicta, that § 602(a)(1) had a broader scope than §

109(a) because, at least in part, § 602(a)(1) applies

to a category of copies that are neither piratical

nor lawfully made under this title. at category

encompasses copies that were lawfully made not

under the United States Copyright Act, but instead,

under the law of some other country.” 654 F.3d 221

(internal citation omitted).

“Applying these principles to the facts of this

case, we conclude that the District Court correctly

decided that Kirtsaeng could not avail himself of

the rst sale doctrine codied by § 109(a) since all

the books in question were manufactured outside of

the United States. In sum, we hold that the phrase

‘lawfully made under this Title’ in § 109(a) refers

specically and exclusively to copies that are made

in territories in which the Copyright Act is law, and

not to foreign-manufactured works. . . . We freely

acknowledge that this is a particularly dicult

question of statutory construction in light of the

ambiguous language of § 109(a), but our holding

is supported by the structure of Title 17 as well as

the Supreme Court’s opinion in Quality King.” 654

F.3d 222.

: John Wiley & Sons Inc. v. Kirtsaeng, 654

F.3d 210 (2d Cir. 2011).

FOREIGN

NONCOMMERCIAL

ACTIVITY

T C  

    

   

    

G   § ()  

P R  O

T  E  E 

C T A

omas Pendleton, United States citizen,

boarded a plane from New York to Hamburg,

Germany. Six months later, he sexually molested

a fteen-year-old boy. Pendleton was arrested and

convicted of engaging in sexual acts with a person

incapable of resisting. After serving nineteen

months in a German prison, Pendleton returned

to the United States, where he was arrested and

indicted for engaging in noncommercial illicit

sexual conduct in a foreign place in violation of §

2423(c) of the Prosecutorial Remedies and Other

Tools to End the Exploitation of Children Today Act

(the PROTECT Act). Pendleton moved to dismiss

the indictment, challenging Congress’ authority

to regulate noncommercial activity outside of the

United States under the Foreign Commerce Clause.

e district court denied his motion, holding that §

2423(c) was a valid exercise of Congress’ power to

regulate channels of foreign commerce.

After a two-day jury trial, Pendleton was

convicted of engaging in illicit sexual conduct

in Germany in violation of § 2423(c), and was

sentenced to thirty years in prison. Pendleton

appealed the district court’s judgment of sentence

and seeks reversal because the noncommercial

prong of § 2423(c) is facially unconstitutional.

e United States Court of Appeals for the

ird Circuit armed the district court’s nding.

is matter is one of rst impression for this Court.