Could be trouble for leisurepro and others

[OldNSalty]

Supreme Court Rebuffs Costco In Copyright Challenge - Daniel Fisher - Full Disclosure - Forbes

Basically, and I am not a lawyer, but it is a case where coscoe bought some watches over-seas at cheap prices and then re-sold them in the US at below market prices. The courts said they couldn't do it as it violated copyright laws (odd argument)...Basically, a business can't use the gray market to bring tightly controlled items into the US against the manufactures wishes.

I wonder how this will play out...and I wish I had known that Coscoe had cut-rate prices on Omega watches.

 

[Peter Guy]

The Court, by virtue of the 4-4 tie, upheld the decision of the 9th C which ruled that Costco violated the statutes relating to copyright protections in the US.

The viability of Omega's infringement claims hinges on the relationship among three sections of the Copyright Act of 1976:  17 U.S.C. §§ 106(3), 109(a), and 602(a).   In relevant part, § 602(a) reads:

Importation into the United States, without the authority of the owner of copyright under this title, of copies ․ of a work that have been acquired outside the United States is an infringement of the exclusive right to distribute copies ․ under section 106, actionable under section 501. 2

Section 106(3) states:

Subject to sections 107 through 122, the owner of copyright under this title has the exclusive rights ․ to distribute copies ․ of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending.

Finally, § 109(a) provides:

Notwithstanding the provisions of section 106(3), the owner of a particular copy ․ lawfully made under this title, or any person authorized by such owner, is entitled, without the authority of the copyright owner, to sell or otherwise dispose of the possession of that copy․

I'm not at all sure the 9th C was wrong. Congress enacts the statutes and we all have to live with them. It would be up to Congress to change the law to allow Costco to import copyrighted materials and then sell them under conditions contrary to the copyright holder -- and I'm not sure that is a good idea.

 

[tridacna]

Supreme Court Rebuffs Costco In Copyright Challenge - Daniel Fisher - Full Disclosure - Forbes

Basically, and I am not a lawyer, but it is a case where coscoe bought some watches over-seas at cheap prices and then re-sold them in the US at below market prices. The courts said they couldn't do it as it violated copyright laws (odd argument)...Basically, a business can't use the gray market to bring tightly controlled items into the US against the manufactures wishes.

I wonder how this will play out...and I wish I had known that Coscoe had cut-rate prices on Omega watches.

Do you really think that LP buys overseas and then resells here? Or perhaps the manufacturers are playing along on the quiet here? I strongly suspect the latter. This might hurt B&H (not LP), but they openly state that an item is gray. I also suspect that it's a tiny piece of their business.

 

[GrumpyOldGuy]

Supreme Court Rebuffs Costco In Copyright Challenge - Daniel Fisher - Full Disclosure - Forbes

Basically, and I am not a lawyer, but it is a case where coscoe bought some watches over-seas at cheap prices and then re-sold them in the US at below market prices. The courts said they couldn't do it as it violated copyright laws (odd argument)...Basically, a business can't use the gray market to bring tightly controlled items into the US against the manufactures wishes.

I wonder how this will play out...and I wish I had known that Coscoe had cut-rate prices on Omega watches.

LP is small fry compared to Costco and other retailers who also sell below "market" prices. If this is enforced, the bigger boys with deep pockets will fight it. Even then, how much of LP sales are gray market vs. quiet back door deals direct from the manufacturers?

 

[DandyDon]

Do you really think that LP buys overseas and then resells here? Or perhaps the manufacturers are playing along on the quiet here? I strongly suspect the latter. This might hurt B&H (not LP), but they openly state that an item is gray. I also suspect that it's a tiny piece of their business.

I thot it was a surprising decision, especially with copyright as a reason, but I really doubt that any of LP's mind at all. I think the manufacturers sell to them, lie - which the retailers don't believe, but it's something to tell the customers.

Eh, I can usually get Scuba Toys to match LP prices, except then I have to pay Texas taxes.

 

[daniel f aleman]

Scubapro and Aqualung do not sell their equipment directly or indirectly to Leisurepro, as each manufacturer uses independent distributers to sell to authorized US reatailers; doing otherwise would violate sales agreement contracts between they and said authorized US reatailers. With that stated, Scubapro and Aqualung know full well from whom Leisurpro gets their equipment. Now, with the US court's decision in hand, let's see if Scubapro and Aqualung "decide" to put a halt to the US importation of their in-copywrite equipment.

 

[aikiguy]

Ouch another win for the corporations......

Another loss for the consumer......

Let's hope that SP and Aqualung don't follow Omega's ideas. They both make good gear, and it is nice to be able to buy that gear at reasonable prices.

Guy

 

[OldNSalty]

The Court, by virtue of the 4-4 tie, upheld the decision of the 9th C which ruled that Costco violated the statutes relating to copyright protections in the US.



I'm not at all sure the 9th C was wrong. Congress enacts the statutes and we all have to live with them. It would be up to Congress to change the law to allow Costco to import copyrighted materials and then sell them under conditions contrary to the copyright holder -- and I'm not sure that is a good idea.

I actually think that it is a twisted use of copyright. Omega claimed that as they had their branding on the product that the branding was what was in dispute-kinda backdoored the copyright argument in as the Omega symbol is what was copyrighted-not the watch.

You can't copyright a physical item like a piece of equipment-you might be able to patent it but I don't think there is anything in the patent laws that plays into 'first-sale'.

First-sale basically says that after you have sold something you no longer have control over it (i.e. Ford can't stop you from going into the used-ford business if you wanted to.)

 

[Lorenzoid]

I haven't read the Court's opinion, but it would seem that this case is only applicable to gray market dive computers if one accepts the proposition that a dive computer is subject to copyright protection the way a watch is. Seems to me that there is a reasonable argument that the appearance of a dive computer is primarily dictated by function. Copyright only protects designs that have some modicum of creativity and doesn't extent to features that are dictated by function. Not every consumer product is subject to copyright protection--far from it.

Classic gray-market goods cases involved trademark issues, not copyright. But Omega knew that an argument based on trademark (e.g., the name "Omega") would get them nowhere, given the present state of the law, so they argued copyright instead. It seems reasonable that, like jewelry, there are aspects of watches that are protectible by copyright. But dive computers? Maybe.

 

[OldNSalty]

I haven't read the Court's opinion, but it would seem that this case is only applicable to gray market dive computers if one accepts the proposition that a dive computer is subject to copyright protection the way a watch is. Seems to me that there is a reasonable argument that the appearance of a dive computer is primarily dictated by function. Copyright only protects designs that have some modicum of creativity and doesn't extent to features that are dictated by function. Not every consumer product is subject to copyright protection--far from it.

Classic gray-market goods cases involved trademark issues, not copyright. But Omega knew that an argument based on trademark (e.g., the name "Omega") would get them nowhere, given the present state of the law, so they argued copyright instead. It seems reasonable that, like jewelry, there are aspects of watches that are protectible by copyright. But dive computers? Maybe.

From the article "Omega sued Costco for selling its watches for prices below suggested retail, citing a tiny Omega logo on the goods that it said gave it the copyright holders power to control how creative works are distributed."

So it was over the logo on the watch-So I would think the case could be made that if a regulator had the distinctive US-Divers logo on it somewhere it is now protected by this ruling.