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Authored by: Anonymous on Tuesday, October 30 2012 @ 12:20 AM EDT |
> Wasn't [Costco] eventually decided against Omega for copyright misuse?
Yes and No. Trial court was for Costco.
Ninth Cct Appeal went to Omega on 9th Cct precedents that first sale
17 U.S.C. §109(a) provides no defense to infringement action brought
under Sections 106(3) and 602(a).
SCOTUS was divided so 9th Cct ruling stands.
Omega held US Copyright for the watches made overseas.
Omega's case was that Costco was importing for sale and distribution,
so they infringed 106(3), and because the "first" sale
took place outside the US 109 did not apply.
Maybe the 9th arrived via Quality King at
> our general rule that § 109(a) refers "only to copies
> legally made . . . in the United States,"
AFAIK Kirtsaeng has not been accused under 106(3) with unauthorized
distribution to the public by sale. His defence rested on 109(a) first sale.
Wiley were denied access to his Paypal records relating to sales of
books from other publishers, and Kirtsaeng claimed not to have
significant net worth [since he spent much of the proceeds from
$1.2M sales on his education costs].
Danger 1. This is 2nd Cct and they have sided with the 9th in
deciding 109(a) applies only to copies made in the US
Danger 2. They both rely on Quality King which is an inverse case:
the copies were made in the US by the copyright holder, exported,
then re-imported by the infringer for resale. This seems to me to be
a very shaky precedent for both Costco and Kirtsaeng, but then IANAL.
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Authored by: Anonymous on Tuesday, October 30 2012 @ 12:36 AM EDT |
I remember many years ago being puzzled by the inscription
on the outside back cover of Penguin paperbacks
"This book is not to be sold in the United States or Canada"
At first I had sympathy for the poor benighted souls,
then I learned about mattress tags...
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