Public Knowledge Urges Supreme Court to Preserve First Sale for ImportsJuly 9, 2010
This week, Public Knowledge asked the Supreme Court to reverse a decision that Costco was infringing copyright merely by selling genuine Omega watches without the watchmaker’s permission.
The brief, which was joined by the Electronic Frontier Foundation, the American Free Trade Association, the American Association of Law Libraries, the Medical Library Association, and the Special Libraries Association, can be found here.
Omega sued Costco for selling genuine Omega watches at a discount, basing their claim on the idea that a small, copyrighted design stamped on the back of the watch was being infringed when Costco sold the watches. Ordinarily, copyright law’s first sale doctrine holds that the owner of a copy of a work can distribute it as he likes. However, Omega claimed that this limitation on copyright did not apply simply because the watches were not made in the United States.
The Public Knowledge brief points out the absurdity that such a rule would create, in which every copyrighted work made overseas could not be sold without the copyright holder’s permission.
“The rule that Omega is describing would subject anyone who sold a work made overseas to potentially massive damages for infringing copyright,” said Sherwin Siy, Public Knowledge’s Deputy Legal Director. “That means a tourist bringing home a UK edition of Harry Potter could be liable, or a used car dealership selling foreign-made cars that had copyrighted logos or software in them.”
The brief notes that Omega’s theory of infringement not only chills sales of copyrighted works, but any goods at all to which a manufacturer might apply a copyrighted logo made overseas. Such tactics would only augment the problems that would be faced by owners and resellers of goods already made outside of the United States.
“The decision below must be reversed in order to prevent far-reaching and negative consequences for trade, innovation, and the general public interest,” the brief said.