Eroding Public Rights

Here’s a headline that didn’t likely make it to your local news:  Costco lost in the case of Costco vs. Omega.

Here’s what happened:  Costco sold a bunch of Omega watches in the U.S. without getting Omega’s permission.  It bought the watches from various European distributors and imported them to the US.  Omega responded by engraving a design on the back and registering the design with the U.S. Copyright Office.

When these engraved watches were sold, Omega sued … but not for selling the watches without permission.  Rather, the suit was over the illegal distribution of copyrighted material, the engraved design.

The U.S. Court of Appeals for the Ninth District ruled in Omega’s favor, accepting the argument that the possession of a copyright owned by a non-U.S. company was stronger than the “doctrine of first sale.”

The “doctrine of first sale” is what allows you, or a company, to sell – or lend – something previously purchased, the idea being that re-sale is entirely separate from the original sale.  The doctrine was established when a publisher, in the early 20th century, printed a notice in a book saying it could never be re-sold for under $1.  The Supreme Court took exception to this:

This presents an interesting problem for libraries (at least in the 9th Circuit).  If a book or journal is published outside the U.S. … and many are, especially in technical areas … can the library assume that it has the right to lend it?


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