Thoughts on Cert in Omega v. Costco

The recent decision by the Supreme Court to hear the case of Omega S.A. v. Costco Wholesale Corporation has raised some eyebrows in legal and library circles. At issue is the legality of “gray market” imports; goods that are manufactured outside the United States for foreign sale, often at a lower cost, that find their way back to the U.S. for sale at discount rates. Many observers had long thought that doing this with copyrighted goods was illegal, but the Court's decision to hear the case calls that into question.

The implications for libraries are uncertain, but could be severe. In order to lend books, libraries rely on two theories that arise out of copyright law. The first is fair use: a library has the right to lend books because of the type of institution they are and the character of their mission. The second theory that libraries use to lend books is the “first sale doctrine,” which states that copyright rights are limited after a good is first sold. Since some books in a library collection may be gray market books, and the origin of books can be hard to ascertain, a decision in this case could cause a good deal of uncertainty.

While it seems unlikely that the Supreme Court will so destabilize the law as we know it, their decision to hear this case is certainly interesting. However, given the closed nature of the Court's decision making process, observers will have to wait until the case is argued to get a sense of what they are thinking.

Perfect 10 v. Google on Remand

In a good, if not terribly surprising decision, the United States District Court for the Central District of California granted a partial victory to Google - this case is good news for web hosts and service providers which may include universities. It also bodes well for protections from liability provided for service providers in the Copyright Act where users of their systems engage in what might be infringing behavior (‘512 Safe Harbor’ provisions). This is not the first round between Google and P10, with Google having won several other victories against the notoriously litigious adult website. From the District Court’s summary of the case:

P10 creates and sells pictures of nude models through a now-defunct print magazine and through a password-protected subscription website. It alleges that Google—a search engine and provider of other internet services—infringes on its copyright by, among other things, linking to third-party websites that host images that infringe P10’s copyrights, caching portions of websites that host infringing images, and hosting infringing images on its own servers that have been uploaded by users of its “Blogger” service.”¹

A decent, if a bit confused, description of the conflict can be found here.

Why this is important: By applying mostly settled law, the court reaffirmed and expanded a few generally understood assumptions about the safe harbor provisions of the DMCA. In particular, the court raised the standard for a successful DMCA takedown notice (cutting down on frivolous claims of copyright infringement). Additionally, the court did not require Google to implement new methods to track “repeat infringers,” people who repeatedly post copyrighted content without permission. Furthermore, the court did reiterate that merely having infringing materials on their servers (and the capacity to delete content off those servers), was not sufficient under the DMCA to constitute “control” over that content.

1PERFECT 10, INC. v. GOOGLE, INC. CV 04-9484 AHM (SHx)