Libraries Worried About Potential Supreme Court Ruling Concerning Legality Of Selling Imported Omega Watches
from the greymarket-libraries dept
Earlier this year we discussed an important upcoming Supreme Court case between Omega (the watch company) and Costco over whether or not it can be considered copyright infringement to resell legally purchased watches that were bought overseas. The concept sounds crazy, right? What does reselling foreign watches have to do with copyright? Well, the details are a bit complicated, but basically lots of companies hate the concept of first sale rights (the ability to resell something you’ve legally bought) and have tried all sorts of tricks to try and block those rights. In this case, Omega inscribed a tiny globe on the back of its watches (where no one will ever see it) solely for the purpose of copyrighting that design and using it to try to stop resale. Of course, once again, the first sale doctrine does allow for resale, but here’s where Omega got sneaky. It pointed out that the first sale doctrine technically only applies to copies that are “lawfully made under this title.” Omega’s argument is that because the copyrighted globe design was made outside of the US, the copy was not made under US law… and thus (voila!) there are no first sale rights on any copyrighted product made outside of the US.
Amazingly, the court agreed. Even more amazing? The Obama administration argues that the court decided correctly, in part because the recent ProIP Act (which gave us our friendly IP Czar) ever so slightly changed the rules on importing and exporting copyrighted goods… removing first sale rights from foreign goods.
The implications, if this is true, are immensely problematic. A coalition of libraries has now filed a detailed amicus brief in the case (pdf) noting what a massive problem it would be if the lower court ruling is upheld:
Over 200 million books in U.S. libraries have foreign publishers. Moreover, many books published by U.S. publishers were actually manufactured by printers in other countries. Although some books indicate on their copyright page where they were printed, many do not. Libraries, therefore, have no way of knowing whether these books comply with the Ninth Circuit’s rule. Without the certainty of the protection of the first sale doctrine, librarians will have to confront the difficult policy decision of whether to continue to circulate these materials in their collections in the face of potential copyright infringement liability. For future acquisitions, libraries would be able to adjust to the Ninth Circuit’s narrowing of Section 109(a) only by bearing the significant cost of obtaining a “lending license” whenever they acquired a copy that was not clearly manufactured in the United States.
How ridiculous is it that copyright law — which was originally put in place “for the encouragement of learning,” might now make it much more difficult to encourage learning through libraries.
Now, some will obviously state that this is a problem for Congress, not the courts, to fix. And, to some extent that is true. But the Supreme Court is also supposed to make sure that the laws that Congress has put in place are interpreted in line with the Constitution. In this case, copyright law is being so abused as to clearly have nothing to do with its intended purpose, and thus the court can and should note that this interpretation of copyright law is clearly outside the bounds of what Congress could have possibly meant.