Hyman Rosen wrote: [...] > exactly that, a copy made as permitted by this law. Omega vs. > Costco resulted in first sale not applying to imported items
Yeah. http://www.lexology.com/library/detail.aspx?g=41f6d942-54be-48f4-a3a7-b766881d6ebd "During the Costco oral arguments, the Court seemed skeptical of both sides positions on whether the first sale statute9 (Section 109) implicitly included a territoriality requirement, repeatedly asking the lawyers to point out where in the text or legislative history support could be found for their respective arguments. The Justices appeared to agree that reading Section 109 to include a territoriality requirement would effectively incentivize foreign outsourcing or manufacturing outside the United States, and Congress certainly would not have enacted Section 109 with such an intent what earthly sense would it make to prefer goods that are manufactured abroad over those manufactured in the U.S. (J. Ginsburg). On December 13, 2010 the Court issued a per curiam order affirming the Ninth Circuits ruling against Costco. This order was issued because the court split 4 to 4 on the question and so by rule the lower court opinion was affirmed by an equally divided court. This division resulted after Justice Kagan had recused herself because she had participated as Solicitor General in submitting a brief to the Court urging it to not take the case because the decision of the Ninth Circuit was correct. In effect, the Supreme Courts action left the Ninth Circuits ruling against Costco undisturbed (i.e., the exhaustion doctrine is subject to a territoriality requirement), but it provided no clarification or further precedent to guide lower courts and interested parties. Thus, the conflicting views about the territorial scope of the exhaustion doctrine remain unsettled (at least outside of the Ninth Circuit)." http://www.lexology.com/library/detail.aspx?g=c0ff7670-6b42-4846-990a-fa753b0c0cf9 "Supreme Court does not answer copyright exhaustion question in Costco Haynes and Boone LLP Thomas Kelton, Jeff Becker, Purvi J. Patel, Lisa Garono and David A. Bell USA December 17 2010 Earlier this week, the US Supreme Court issued a split decision and failed to resolve whether copyrighted materials legally made abroad can be imported into the U.S. and sold without the express permission of the copyright owner. See Costco Wholesale Corp. v. Omega S.A., 562 U.S. __ (2010). In other words, it is still up to the nations circuit courts to decide whether the first sale doctrine extinguishes the rights of a copyright holder when the goods are made outside of the U.S. The case came to the Court from the 9th Circuit, which ruled that copyrighted materials made abroad cannot be imported into the U.S. and sold without the express permission of the copyright owner. See Omega S.A. v. Costco Wholesale Corp., 541 F.3d 982 (9th Cir. 2008). After the split decision at the Supreme Court, the 9th Circuits decision remains good law within the 9th Circuits jurisdiction, but no nationwide precedent is set. Other circuit courts have yet to weigh in on the issue. The 9th Circuits decision and the Supreme Courts decision are referred to collectively herein as the Costco cases. The Costco cases have important ramifications, not only within the 9th Circuit. Grey market importers may find themselves subject to successful infringement suits, especially when selling goods within the 9th Circuit. From the other vantage point, the Costco cases provide an important avenue for copyright holders, such as brand-name manufacturers, to keep grey market goods out of the country. Furthermore, because the 9th Circuit includes the entire west coast, the Costco cases deal a blow to much of the nations grey market activity. Copyright holders and grey market importers can expect the same question to come before other circuit courts in the coming years. Interestingly, the Costco cases treat foreign-manufactured goods preferentially in comparison to domestically-manufactured goods. In other words, a lawful first sale does not extinguish a copyright holders rights when the goods are made abroad; however, the same is not true for goods produced domestically. Thus, copyright holders gain a slight advantage by manufacturing goods abroad. History The Supreme Court addressed a similar issue in 1998. See Quality King Distributors Inc., v. L'anza Research International Inc., 523 U.S. 135 (1998). In the Quality King decision, the goods in issue were made in the U.S., exported abroad by the copyright holder, and then re-imported into the U.S. by the defendant without the copyright holders permission. The Supreme Court held that the first sale doctrine extinguished the rights of the copyright holder. In Quality King, the Court specifically refused to consider a fact pattern including foreign-manufactured goods. In the present case, Omega made and sold its watches in Switzerland legally. A third party acquired the watches and legally sold them to Costco, who imported them into the U.S. without the permission of Omega. Omega had no contractual relationship with Costco providing protection against grey market importation and sales and, thus, had to rely on copyright law. Specifically, the watches in question had a small design on their backs, garnering copyright protection and serving as Omegas ticket into court. The first sale defense to copyright infringement arises from statute and applies to a particular copy lawfully made under this title, where title refers to the U.S. copyright laws. 17 U.S.C. §109(a). The 9th Circuit underpinned much of its decision by cautiously avoiding applying U.S. law to foreign activities. In other words, the 9th Circuit says that made under this title means made in the U.S. Similar laws providing for trademark and patent exhaustion remain undisturbed." regards, alexander. -- http://gng.z505.com/index.htm (GNG is a derecursive recursive derecursion which pwns GNU since it can be infinitely looped as GNGNGNGNG...NGNGNG... and can be said backwards too, whereas GNU cannot.) _______________________________________________ gnu-misc-discuss mailing list [email protected] http://lists.gnu.org/mailman/listinfo/gnu-misc-discuss
