Re: Bye Bye First-Sale Doctrine (WIPO bill)

601 is no longer in force--sunset 1986? or 4, I forgot. Anyway, the printing restrictions are dead.

The way I view it is this: the importation provisions, for good or for ill, grant the copyright owner a territorial monopoly on the U.S. market. If a flood of lawful, but unauthorized copies come into the U.S. market, the effect on demand is the same as someone sitting there with a xerox machine. (There is a certain logic to this--if the right of distribution can be exhausted outside the united states, then it can also be infringed outside the united states. But cases have held that acts of infringement occurring outside the US are not actionable under the copyright act/. Thus the rights do not exist abroad.) Cf. Subafilm (9th Cir).

However, if the statute permits the importation of a copy (or five for lending purposes) then how can it prohibit the further distribution of those copies? It seems that the use of copyright to prevent that distribution would be viewed as an unlawful restraint on alienation, under the same rationale as that employed in the Bobbs Merrill case way back in the day (S. Ct., around 1920, I think). If the copy comes into the country lawfully, then I don't think there's anything for anyone to worry about. In other words, that result makes no sense to me.

In the case of works that have been imported into the United States in violation of 602(a)--manufactured abroad, let's say--the law has not really "changed." The only circuit that bought the construction of 109 employed in L'anza was the third (which also involved shampoo labels). I would think that lawyers giving advice to libraries during that period would have pointed out that the majority of circuits recognized the importation right applied to works manufactured abroad. (This manufacturing requirement was de facto under 602; it has nothing to do with the 601 sunset provision). Furthermore, even after L'anza, the importation of works printed and distributed in the UK would infringe if imported without permission.

The point at which the first sale doctrine excuses the distribution of a copy imported in violation of 602 has--to my knowledge, anyway-- never been answered, either in statute or legislative history. But again, that was always true.

Cheers.
Chris

Christopher A. Mohr
<chrismohr[_at_]sprintmail.com> Received on Thu Sep 10 1998 - 14:47:25 GMT