RE: New CA9 case: Importation right vs. first sale doctrine

From: John Noble <jnoble[_at_]>
Date: Fri, 11 Nov 1994 06:52:09 -0500

Vance Koven writes:
>Mark Lemley writes:
>>> As I understand it, there's been a bit of conflict about the
>>> interaction of 602 and 109(a).
>>There sure is. Check out Sebastian International v. Consumer
>>Contacts, 847 F.2d 1093 (3d Cir. 1988), holding the opposite.

Well, perhaps not quite the opposite. The Ninth Circuit in Parfums Givenchy tries to distinguish Sebastian as follows:

"In Sebastian Intern v. Consumer Contacts (PTY), 847 F.2d 1093, 1098-99 (3rd Cir. 1988), the Third Circuit held that the first sale doctrine of S 109(a) superseded the import right of S 602(a) where a domestic manufacturer first exported its materials and then attempted to invoke the copyright laws to enjoin a third party from importing the copyrighted goods. In BMG Music we explicitly declined to speculate about how we would decide the facts in Sebastian. We again decline to do so."

I gather it is the rationale of the Ninth Circuit that a "first sale" within the meaning of sec. 109 must be a first sale within the U.S., or it is trumped by sec. 602, and that either the Sebastian sale counts as such, or should be deemed to count as such because it is a first sale by the the U.S. copyright holder from the U.S. Still, I think I agree with Vance that this "distinction" is one without a difference. At least its hard to see how the language of either sec. 602 or sec. 109 splits that hair.

John F. Noble, Editor
Computer Law Reporter
jnoble[_at_] Received on Fri Nov 11 1994 - 11:56:14 GMT

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