osewalrus (osewalrus) wrote,

We Win A Supreme Court Case

And PK's amicus brief was cited by the majority opinion in Kirtsaeng v. Wiley & Sons.

A good day.

My colleagues at Public Knowledge have blog posts explaining the case and its implications here and here. To answer a few random questions.

(a) You will note that the dissent is written by Ginsberg and joined by Kennedy and Scalia, the majority is written by Bryer, and a concurring opinion by Kagan, joined by Alito. This will surprise folks who break the court down into "liberal" v. "conservative." Not every case is resolvable (or resolved) along simple and straightforward axis. In this case, there where two issues -- the first being a philosophical one about copyright (where Bryer has been a leading proponent of putting limits on the power of the Copyright Clause and Ginsberg has been a copyright maximalist) and cannons of statutory interpretation (Scalia did not join the portions of the dissent which focused on legislative history, since he is generally an opponent of using legislative history to determine Congressional intent.)

But one of many reasons I would like to Ginsberg resign sooner rather than later is she is absolutely wretched on many of the issues that I care about in intellectual property and media regulation.

(b) The Costco v. Omega Watches case two years ago, which raised the same question with regard to the interaction between the "First Sale Doctrine" and the "Importation provision" was resolved 4-4 with Kagan abstaining (she was required to abstain from any case where the Solicitor General's office filed a brief for the first year, the SG supported the interpretation urged by Wiley & Sons). Because there was no majority, the decision of the 9th Cir. in Costco (which held that Omega could restrict importation under the copyright clause) was affirmed, but without Supreme Court precedent.

This decision was 6-3. So who switched? My personal bet is Alito, given that he signed on to the Kagan concurrence.

(c) It is undoubtedly the case that the publishers and other supporters of Copyright Maximalism will troop back to Congress to get a legislative fix. The Kagan concurrence essential outlines what Congress would need to do to obtain the result desired by Wiley & Sons without doing the violence to the First Sale doctrine rejected by the Majority. This will be an excellent opportunity for us to test the strength of the growing push-back on Copyright Maximalism.

  • Post a new comment


    Anonymous comments are disabled in this journal

    default userpic

    Your IP address will be recorded