The Copyright Misuse Quote:

Petitioner further contends (Pet. 22) that the policy concerns it identifies are “exacerbated because it is easy for copyright holders to apply a copyrighted symbol, label, or package to almost any good offered for sale in the United States.” This case, however, comes to the Court in an interlocutory posture, and petitioner’s copyright-misuse defense remains to be adjudicated on remand. Petitioner has challenged, as a misuse of copy right, respondent’s artifice of affixing a tiny copyrighted logo to its luxury wristwatches in order to invoke Section 602(a)(1). See C.A. E.R. 117-119 & n.1; cf. Morton Salt Co. v. G.S. Suppiger Co., 314 U.S. 488, 491-494 (1942) (discussing patent misuse)

The “principal function” of copyright law “is the protection of original works, rather than ordinary commercial products that use copyrighted material as a marketing aid.” Quality King, 523 U.S. at 151. Although the doctrine of copyright misuse is both controversial and rarely invoked, it has been recognized by at least one court of appeals. See Lasercomb Am., Inc. v. Reynolds, 911 F.2d 970, 973-977 (4th Cir. 1990). The United States takes no position on the appropriate resolution of peti tioner’s copyright-misuse defense. To the extent that the particular type of copyrighted material at issue here raises distinct policy concerns, however, those concerns are best addressed on remand under a legal theory specifically targeted at that alleged abuse. Cf. Quality King, 523 U.S. at 140 (explaining that, “[a]lthough the labels” at issue in that case “ha[d] only a limited creative component, [the Court's] interpretation of the relevant statutory provisions would apply equally to a case involving more familiar copyrighted materials such as sound recordings or books”).

2. Petitioner further contends (Pet. 22) that the pol icy concerns it identifies are “exacerbated because it is easy for copyright holders to apply a copyrighted sym bol, label, or package to almost any good offered for sale in the United States.” This case, however, comes to the Court in an interlocutory posture, and petitioner’s copyright-misuse defense remains to be adjudicated on remand. Petitioner has challenged, as a misuse of copyright, respondent’s artifice of affixing a tiny copyrighted logo to its luxury wristwatches in order to invoke Section 602(a)(1). See C.A. E.R. 117-119 & n.1; cf. Morton Salt Co. v. G.S. Suppiger Co., 314 U.S. 488, 491-494 (1942) (discussing patent misuse).

Concerns:

• end user rights were ignored in Kagan’s Solicitor General brief
• the traditional property perspective on the First-Sale Doctrine was ignored
• Kagan advocates punting the issues to congress (remind anyone of other recent SCOTUS rulings… Eldred v. Ashcroft)
• No consideration on the impact on digital goods

Solutions

• Limited term for SCOTUS Justices
• Ask Kagan about end user rights in the nomination process
• Get a Digital Native or 5 on the court ASAP (unfortunately that could take 50 years)

Other stories on this topic:

Holywood Reporter on Elena and IP

NIIP #2 Omega v. Costco (Kagan’s SG opinion discussed within)

Omega v. Costco Brief