If you could see Blawgletter right now, you might notice some blushing. For that of which we write betrays a streak we prefer not to show.
The story begins Monday morning, when we heard a U.S. Supreme Court justice mention "Coke on Littleton, 1628" -- and instantly knew what he meant. Why the blaze of recognition? It came because we'd lately re-read a 2007 Supreme Court ruling that spoke of "a treatise published in 1628". Which fact may strike you as at least a one on the nerd-o-meter.
The case before the Court on Monday involved the reach of the "first-sale" doctrine under U.S. copyright law. Does it let Amazon, say, buy in Singapore excess stocks of Harry Potter books that J. K. Rowling's publisher printed in, for instance, Shanghai and import them into the U.S. without fear of a copyright infringement claim by Ms. Rowling? Or does first-sale apply only to goods that the copyright owner made in the U.S.?
Justice Breyer cited Lord Coke's treatise for the notion, as he said, "if a man be possessed of a chattel and give or sell his whole interest upon a condition, that condition is no good." Supap Kirstaeng v. John Wiley & Sons, Inc., No. 11-687, Tr. at 49:10-12 (U.S. Oct. 29, 2012). By which His Honor seemed to imply that he thinks the first-sale doctrine in the Copyright Act of 1976 allows you to purchase overseas and import into the U.S. any goods no matter where the copyright owner made or caused the making of the goods.
The 2007 case prompting the recollection involved an antitrust claim that for almost a century the Supreme Court treated as a per se violation of section 1 of the Sherman Act. In that case, Leegin
Creative Leather Products, Inc. v. PSKS, Inc., 551 U.S. 877 (2007), the Court overruled its decision in Dr. Miles Medical Co. v. John D. Park & Sons Co., 220 U.S. 373 (1911). The opinion cited the ancient treatise by way of explaining that Dr. Miles stood more on "'formalistic' legal doctrine" than on sound economic theory. Leegin, 551 U.S. at 888.
Lord Coke won in Dr. Miles and lost in Leegin. Will he stage a come-back by forming the crux of the decision in the first-sale doctrine case?We will know by June -- and likely a lot sooner.