On Monday (Patriots Day in New England) the Supreme Court granted certiorari in Costco v. Omega. I’ve provided a rundown of the case in late March so I will dispense with the background. A couple of comments on the Supreme Court’s decision to grant cert:
The most interesting part of blogging cases is watching the conversation between the different branches of government and the many layers of our judicial system. I was somewhat surprised when the Supreme Court invited the Solicitor General’s Office to brief cert but upon reflection it made sense. Congress, in enacting the Pro-IP Act, arguably re-framed a core component of copyright law without substantial debate before passage. The invitation by the Supreme Court may have been an attempt to force the Executive to take a position on an issue that was not given discussion before enactment.
To that end, I question whether the Supreme Court’s decision to grant cert in Costco is rooted in forcing debate on the contours of the first-sale doctrine. Oral arguments will provide a spotlight, even if the Supreme Court has no intention of disturbing the Ninth Circuit’s (and all of the other district courts’ that have addressed the issue) interpretation of Sections 109 and 602. If Congress does not amend the provisions in the near future it will likely become a lasting component of American copyright law, given the momentum it takes to pass any law in the U.S. The granting of cert, then, could be an attempt by the Supreme Court to ensure that the contours of the first sale doctrine accurately reflects current Congressional intent before momentum takes hold.
I would not be surprised if the Supreme Court’s opinion contains language on issues that are not directly at bar, such as whether parties can raise 109(a) as a defense in cases involving foreign-made copies so long as a lawful sale has occurred, or about the viability of the defense of copyright misuse.
The Solicitor General’s Office led with the argument that cert should be denied because there was no circuit split, instead of with its statutory analysis. The petitioners made the argument in opposition that the Court should grant cert because there was no circuit split, and unless the issue was addressed post-haste, it would likely become accepted cannon. I made the observation in my previous post on Costco that the Supreme Court appears to grant cert in copyright cases for issues that fundamentally affect the structure of copyright law, and circuit splits play a modest part of the evaluation process. The decision of the Supreme Court to grant cert in Costco provides more support for this contention.
The American Federation of Musicians, which is affiliated with the AFL-CIO, presumably favors the Ninth Circuit’s interpretation that Section 109 does not limit distribution rights in works manufactured outside of the United States. But the Ninth Circuit’s decision, Costco argued, will negatively impact American manufacturing, which I would assume is closer to the core of the AFL-CIO’s lobbying efforts. The AFL-CIO (AFM) elected not to brief on cert. It will be interesting to see if they jump in on merits. A petition could provide a signal of how much, if at all, labor unions are concerned about the Ninth Circuit decision’s possible negative impact on American manufacturing.
Previous posts on Costco v. Omega:
- Solicitor General recommends denial of cert in Costco v. Omega
- Supreme Court asks SG to brief Costco v. Omega
- Copyright at the Supreme Court this week
- Moral Panics, Costco, Salinger v. Colting, and the elimination of the fee for expedited filing if litigation is pending
- Supreme Court docket roundup of copyright cases
- Petition of Writ of Certiorari (Costco)
- Brief of Amicus Curiae Public Citizen in Support of Petitioner
- Brief of Amici Curiae Public Knowledge, Electronic Frontier Foundation in Support of the Petition
- Brief of Amici Curiae Entertainment Merchants Association and National Association of Recording Merchandisers in Support of Petitioner
- Brief for EBay Inc. as Amicus Curiae in Support of Petitioner
- Brief Amicus Curiae Retail Industry Leaders Association, National Association of Chain Drug Stores, Amazon.com, Gamestop Corp., Movie Gallery, Inc., Quality King Distributors, Inc., Target Corporation,in Support of Petitioners
- Brief for Respondent in Opposition (Omega)
- Reply Brief for Petitioner (Costco)
- Supplemental brief for Petitioner (Costco)
- Solicitor General brief recommending denial of cert
- Omega’s renewed motion for summary judgment in the Central District of California
- Ninth Circuit opinion