Following Up for the Week Ending 9/12/2010

First Sale Doctrine Eroded by Ruling over Watches

I am a bit at a loss to understand what a copyrighted logo on a watch has to do with our engine of free expression. As Matthew Lasar at Ars Technica explains, it factors into a new Ninth Circuit ruling involving CostCo’s sale of Omega watches sourced from a distributor other than the watchmaker itself.

What really makes my head hurt is that this issue has been tested before, with the opposite result, that the first sale doctrine did indeed apply to goods purchased outside of the US. If you can follow the historical case and the twisted logic this newer case uses to slip past precedent, you are smarter or more dedicated than me.

As the amicus briefs from EFF and PK are quick to point out, commerce increasingly knows fewer borders. We’ve especially seen manufacturing take flight from the US for parts of the world where labor costs yield a fatter bottom line. The implication is that the likelihood of this sort of complaint arising again is actually higher than you might think hence this is a more dangerous precedent than it might otherwise seem.

Since this is a copyright ruling, I am very concerned about how this erodes the first sale doctrine, an important limitation on copyright in the US. I guess this is to be expected, consistent with an increasingly market-centric interpretation of copyright. I am worried, not just by this turn of events but by the trend in general, over the future of copyright’s compatibility with free speech concerns if all our limits and exceptions are mowed under in service of trade and licensing.