Month: March 2013

Stef van Gompel has published "The Orphan Works Chimera and How to Defeat It: A View From the Atlantic" in a special issue of the Berkeley Technology Law Journal about orphan works.

Here's an excerpt:

This Article consists of three parts. Employing the metaphor of the Chimera, Part II systematically introduces the different ways in which the problem of orphan works manifests itself and describes the legal uncertainty that the different categories of users of orphan works experience. Next, Part III suggests addressing the orphan works problem by adopting a multifaceted approach that would provide adequate relief for the different categories of users of orphan works. Part IV concludes.

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Randal C. Picker has published "Private Digital Libraries and Orphan Works" in a special issue of the Berkeley Technology Law Journal about orphan works.

Here's an excerpt:

This Article is divided into three substantive parts. In Part II, this Article considers some of the characteristics that will matter for the competition between public and private digital libraries and offer a brief discussion of the emerging private digital libraries. Google's Book Search project is probably the most prominent example, but Amazon has an important initiative as well and there are many smaller examples. In Part III, this Article considers the current library exemptions in U.S. copyright law, with particular emphasis on § 108. . . .

In Part IV, this Article turns to the shape of a potential statutory licensing regime for orphan works.

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The Supreme Court has ruled in Kirtsaeng, dba Bluechristine99 v. John Wiley & Sons, Inc. that the first sale doctrine applies to “copies of a copyrighted work lawfully made abroad.”

Here's an excerpt from the ruling:

Held: The "first sale" doctrine applies to copies of a copyrighted work lawfully made abroad. Pp. 7-33.

(a) Wiley reads "lawfully made under this title" to impose a geographical limitation that prevents §109(a)'s doctrine from applying to Wiley Asia's books. Kirtsaeng, however, reads the phrase as imposing the non-geographical limitation made "in accordance with" or "in compliance with" the Copyright Act, which would permit the doctrine to apply to copies manufactured abroad with the copyright owner's permission. Pp. 7-8.

(b) Section 109(a)'s language, its context, and the "first sale" doctrine's common-law history favor Kirtsaeng's reading. Pp. 8-24.

(1) Section 109(a) says nothing about geography. "Under" can logically mean "in accordance with." And a nongeographical interpretation provides each word in the phrase "lawfully made under this title" with a distinct purpose: "lawfully made" suggests an effort to distinguish copies that were made lawfully from those that were not, and "under this title" sets forth the standard of "lawful[ness]" (i.e., the U. S. Copyright Act). This simple reading promotes the traditional copyright objective of combatting piracy and makes word-by-word linguistic sense.

In contrast, the geographical interpretation bristles with linguistic difficulties. Wiley first reads "under" to mean "in conformance with the Copyright Act where the Copyright Act is applicable." Wiley then argues that the Act "is applicable" only in the United States. However, neither "under" nor any other word in "lawfully made under this title" means "where." Nor can a geographical limitation be read into the word "applicable." The fact that the Act does not instantly protect an American copyright holder from unauthorized piracy taking place abroad does not mean the Act is inapplicable to copies made abroad. Indeed, §602(a)(2) makes foreign-printed pirated copies subject to the Copyright Act. And §104 says that works "subject to protection" include unpublished works "without regard to the [author's] nationality or domicile," and works "first published" in any of the Cite as: 568 U. S. ____ (2013) 3 Syllabus nearly 180 nations that have signed a copyright treaty with the United States. Pp. 8-12.

(2) Both historical and contemporary statutory context indicate that Congress did not have geography in mind when writing the present version of §109(a). A comparison of the language in §109(a)'s predecessor and the present provision supports this conclusion. The former version referred to those who are not owners of a copy, but mere possessors who "lawfully obtained" a copy, while the present version covers only owners of a "lawfully made" copy. This new language, including the five words at issue, makes clear that a lessee of a copy will not receive "first sale" protection but one who owns a copy will be protected, provided that the copy was "lawfully made." A nongeographical interpretation is also supported by other provisions of the present statute. For example, the "manufacturing clause," which limited importation of many copies printed outside the United States, was phased out in an effort to equalize treatment of copies made in America and copies made abroad. But that "equal treatment" principle is difficult to square with a geographical interpretation that would grant an American copyright holder permanent control over the American distribution chain in respect to copies printed abroad but not those printed in America. Finally, the Court normally presumes that the words "lawfully made under this title" carry the same meaning when they appear in different but related sections, and it is unlikely that Congress would have intended the consequences produced by a geographical interpretation. Pp. 12-16.

(3) A nongeographical reading is also supported by the canon of statutory interpretation that "when a statute covers an issue previously governed by the common law," it is presumed that "Congress intended to retain the substance of the common law." Samantar v. Yousuf, 560 U. S. ___, ___. The common-law "first sale" doctrine, which has an impeccable historic pedigree, makes no geographical distinctions. Nor can such distinctions be found in Bobbs-Merrill Co. v. Straus, 210 U. S. 339, where this Court first applied the "first sale" doctrine, or in §109(a)'s predecessor provision, which Congress enacted a year later. Pp. 17-19.

(4) Library associations, used-book dealers, technology companies, consumer-goods retailers, and museums point to various ways in which a geographical interpretation would fail to further basic constitutional copyright objectives, in particular "promot[ing] the Progress of Science and useful Arts," Art. I, §8, cl. 8. For example, a geographical interpretation of the first-sale doctrine would likely require libraries to obtain permission before circulating the many books in their collections that were printed overseas. Wiley counters that such problems have not occurred in the 30 years since a federal court first adopted a geographical interpretation. But the law has not been settled for so long in Wiley's favor. The Second Circuit in this case was the first Court of Appeals to adopt a purely geographical interpretation. Reliance on the "first sale" doctrine is also deeply embedded in the practices of booksellers, libraries, museums, and retailers, who have long relied on its protection. And the fact that harm has proved limited so far may simply reflect the reluctance of copyright holders to assert geographically based resale rights. Thus, the practical problems described by petitioner and his amici are too serious, extensive, and likely to come about to be dismissed as insignificant—particularly in light of the ever-growing importance of foreign trade to America. Pp. 19-24.

(c) Several additional arguments that Wiley and the dissent make in support of a geographical interpretation are unpersuasive. Pp. 24-33. 654 F. 3d 210, reversed and remanded.

BREYER, J., delivered the opinion of the Court, in which ROBERTS, C. J., and THOMAS, ALITO, SOTOMAYOR, and KAGAN, JJ., joined. KAGAN, J., filed a concurring opinion, in which ALITO, J., joined. GINSBURG, J., filed a dissenting opinion, in which KENNEDY, J., joined, and in which SCALIA, J., joined except as to Parts III and V-B-1.

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