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Solicitor General Tells Supreme Court That First Sale Shouldn't Apply To Foreign-Made Goods
from the unintended-consequences dept
Earlier this year, we discussed an interesting lawsuit that was being appealed to the Supreme Court between retailer Costco and Omega over copyright claims on some imported watches. Copyright on watches? You can read all the details at that link, but basically, Omega started stamping its watches with a tiny, meaningless, barely noticeable engraving, and then registered that with the copyright office. Omega then sold some cheap watches in Europe, while keeping the prices of its US watches much higher. Sensing an arbitrage opportunity, someone who legally bought the cheap Omega watches in Europe sold them to Costco to offer to US consumers. Now, all of this should be legit under basic common sense and any "first sale doctrine," but not so fast. Omega claims the first sale doctrine only applies to goods made in the US... and while a district court sided with Costco, the 9th circuit appeals agreed with Omega. This could lead to seriously troubling outcomes -- such as if you buy a painting made outside the US and import it to the US, you might not actually be allowed to sell it again!
Unfortunately, it looks like the White House's Solicitor General is siding with Omega, recommending that the Supreme Court not take the case. That link has some more details on the case as well, including one tidbit I hadn't noticed before: which is that part of the case hinges on the ProIP Act, which you may recall the entertainment industry pushed hard for a couple years back. Apparently, one of the little noticed sections of ProIP changed the rules on import and export of copyright goods, such that first sale no longer applies to foreign goods. If this interpretation stands, that's incredibly troubling, and once again demonstrates the massive damage caused by entertainment industry lobbyists continuing to push through their own language into copyright law, and pretending it's mostly innocuous changes.
Unfortunately, it looks like the White House's Solicitor General is siding with Omega, recommending that the Supreme Court not take the case. That link has some more details on the case as well, including one tidbit I hadn't noticed before: which is that part of the case hinges on the ProIP Act, which you may recall the entertainment industry pushed hard for a couple years back. Apparently, one of the little noticed sections of ProIP changed the rules on import and export of copyright goods, such that first sale no longer applies to foreign goods. If this interpretation stands, that's incredibly troubling, and once again demonstrates the massive damage caused by entertainment industry lobbyists continuing to push through their own language into copyright law, and pretending it's mostly innocuous changes.
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Reader Comments (rss)
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Wait, what?
This seems like it has immense problems for all commerce. Especially with how Omega snuck in the copyright. Honda could do the same thing and claim used car lots can't sell their cars. Would foreign book importers need permission from each author to stock the books? What about a small record store purchasing and reselling music or movies from abroad?
I'm not that knowledgeable on the specifics here, so maybe I'm missing something, but wouldn't this create huge problems in just about every sector?
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Re: Wait, what?
"
Yeah it does for imported items, isnt this just wonderful!
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Re: Wait, what?
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Re: Wait, what?
Given that damn near EVERYTHING sold in the US is either imported or made from imported material, this would pretty much kill ALL used sales.
Back to your used car analogy, that would seriously dent the new car market as well, because trade-ins are a form of sale.
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Leave it to Obama's and Biden's pro-IP administration to side with those who would steal from our culture by unfairly limiting the manner in which cultural items can spread around the world.
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Re:
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I agree completely!
Seriously though its disgusting, the US is supposed to be a free market and support capitalism meanwhile we side with those who want to interfere with market laws of supply and demand.
On a side note, who wears Omega watches anyway?
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Talk about your imaginary rights...
> product only to those retailers they grant that right to.
They do not. They have no such right. Furthermore, they have no right to interfere with anyone else and trample on their rights.
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Re: Talk about your imaginary rights...
Cars or watches, this is nothing new... this is classic "grey market".
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Why would they have any rights?
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Why would they have any rights?
If Omega can make money on the lower price, then they have no leg to stand on. These watches ARE real Omega watches, not knockoffs, and they were purchased legitimately. Costco found a sweet deal, and Omega gets what it deserves, consequences for its mistakes.
What?!? Consequences!!?!!?! What on earth are those?? We just use the law to get money every time something goes wrong.
(/sarcasm)
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Re: Re: Talk about your imaginary rights...
You are either misinformed or are a flat our liar. Manufacturers do NOT control actions of their dealers. Try having a dispute with a dealer and see how much support the car manufacturer provides. Here is a hint: none. Now that we got rid of your ridiculous comparison, get back to the drawing board and come back with something that makes sense.
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Re: Re: Talk about your imaginary rights...
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Re: Re: Talk about your imaginary rights...
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Not quite the same, but similar...
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Re:
1. Please put down the crack pipe and take a step back.
2. Fill the bath tub with ice and cold water.
3. Jump in and stay in for 90 seconds.
4. Welcome back to reality! I hope
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Everything is copyrighted when created, right?
The operant words I think are, "sold in the United States with the authority of the copyright owner."
What the ruling says is that you must have the "authority" of the copyright holder to resell. The fact that the watches were imported seems immaterial. What this ruling says to me is that you can't resell anything with the words "copyright on them without the permission of the copyright owner.
Also, isn't everything automatically copyrighted from the moment it's created, at least "works of art" such as text, photos and paintings? How can a copyright be applied to a "design", as the ruling says? If a copyright applies to designs then everything is copyrighted.
I don't see how this ruling can stand.
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