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Both the District Court and the 2nd District Federal appellate rulings favored Wiley which caused Asserting to seek cert. which was granted April, 2012 followed by oral arguments in October, 2012. Supra Asserting, a Thai college student bought, imported to the United States, and resold textbooks inscribed with language warning that this intellectual property (“I. P. “) could not be exported. These books, originally published and sold in Asia for less money than charged purchasers in the U.
S. A. , by various publishers, were then resold by Greening’s business, Bloodthirstiness, through sales’ vehicles such as the internet resale function eBay. Com. It was a moon practice for publishers to manufacture cheaper books offshore and to sell these products in international markets at a lower price point than sales to the U. S. Domestic market. Wiley objected to Gradients resale on the basis that they did not license such activity and believed it to be unlawful.
Further, it was also common for 3rd parties to original sales by manufacturers and purchasers to use, loan and resell such manufactured items. Examples of this include lending libraries (public, academic, and professional), Goodwill and Salvation Army resale businesses, and coal private garage sales all of whom are resellers whose business activities are impacted by legal theories in Asserting. Issues & Arguments Wiley held to the “exclusive rights” legal theory purported in U. S. Copyright law which affords “exclusive rights” to manufacturers “to distribute” their products. Copyright Act 1976 17 U. S. C. Sect. 106(3) ) In contrast, Asserting argued under a different legal theory, first sale doctrine, that his resale of textbooks through his business entity, Bloodthirstiness, was lawful and protected. This doctrine, originally established by he SCOUTS case, Boobs-Merrill (1908) and codified at Section 109(a) through enactment of the U. S. Congress passage of the 1976 Copyright Act, dissolves the copyright owners’ rights under 17 U. S. C. Section 106(3) to “lawfully made under this title” goods following the first sale.
Therefore, Asserting had legal rights and privileges to resale of previously legally manufactured and purchased textbooks. Language of Sectioning (3) of the U. S. C. , “lawfully made under this title” brought the following question to consideration in Asserting: Do legally manufactured items have efferent legal standing and treatment depending on the geographical locale of their production? By extension a second question arises: What constitutes an “American made” product the location of its manufacture or the national country base of the manufacturer?
In answering the second question, other inquiries are called into question such as in a digital age what do concepts such as citizenship and national loyalties, as well as rights and responsibilities of citizens to their governments mean? Sections of copyright law, exclusive rights as propounded by Sect. 106(3) contending against first sale doctrine set forth into law in Section 109(a). (IT Chicago-Kent College of Law’s third annual Supreme Court IP Review ((SHIPS)) conference, held September 13, 2012.
Session 6) Greening’s textbooks fall under the category of parallel or gray market imports (goods produced offshore and later imported for sale to the U. S. Market). They are genuine, branded goods imported into a market and sold there (by Asserting) without consent of their creative brand owner (Wiley). Although the issue of gray market goods clearly encompasses actions to which this ease refers, Wiley did not argue a theory of their case based on the concept of gray market imports. “Fact Sheets Cross-Border Topics: Parallel Imports ((Gray Market Goods)),” International Trademark Association, 2013). U. S. Trade policy and free trade issues which increasingly find their way to the daily public dialog also arise in Asserting. These are very sensitive matters in light of the growing concerns about losses of domestic Jobs and increased offshore manufacturing by U. S. Companies. This is a critical economic issue now that it has become apparent that the national ax revenue base is negatively impacted by these actions.
U. S. Relations with China, which will require facile negotiations going forward, are also involved here as U. S. Companies increasingly claim that their brand rights and privileges are infringed without consideration by burgeoning Chinese manufacturing concerns. Further, U. S. Relations with the European Union markets are also effected by U. S. Trade policies at a time when key countries in Europe (Italy and Spain) are facing severe unemployment and economic crises following the global economic slump of 2008. Decision
SCOUTS ruled in favor of Asserting 6-3 upholding its theory of the case that it had no obligation to negotiate licensing rights with original copyright owners or holders, Wiley and others so situated, because of the applicability in this instant case of first- sale doctrine which the Court held exhausted original copyright owner’s rights after the first sale and was not geographically limited to the product manufactured in the U. S. To quote http://www. Eyes. Org/cases, “… (first-sale doctrine) states that the copyright owner maintains control of the first sale only.
The language and common- law history of the Copyright Act support a non-geographic reading of the Act that allows for unrestricted resale of copyrighted goods regardless of the location of their manufacture. The Court also held that a geography-based reading of the “first sale” doctrine would drastically harm the used-book business as it would force book sellers to be subject to the whim of foreign copyright holders. ” This ruling has lead legal analysts and observers of the Court to suggest that the outcome in Asserting did not follow that of a similar case, Cost vs.. Omega.
In Cost the Court reached a 4-4 decision and as such could render no comment regarding theories of the case Justice Kananga rescued herself because she had previous contact with that case earlier in her prior capacity as Solicitor General). Since it is estimated that billions of dollars in revenue are involved with I. P. Transactions as well as the specific matters at issue in Asserting, it is anticipated that the issue of copyrights, and the doctrines of first-sale, exclusive and exhaustion rights will find their way to the Congress for Articles Case Review: Asserting