Last edited Tue Mar 19, 2013, 11:41 PM - Edit history (4)
http://www.supremecourt.gov/opinions/12pdf/11-697_d1o2.pdf
BREYER, J., delivered the opinion of the Court, in which ROBERTS, C. J., and THOMAS, ALITO, SOTOMAYOR, and KAGAN, JJ., joined.
KAGAN, J., filed a concurring opinion, in which ALITO, J., joined.
GINSBURG, J., filed a dissenting opinion, in which KENNEDY, J., joined, and in which SCALIA, J., joined except as to Parts III and V–B–1.
The key is that the Common Law Rule known as the "First Sale Rule" is incorporated in 17 U.S.C. § 109 (a):
17 U. S. C. §109(a)“Notwithstanding the provisions of section 106(3), the owner of a particular copy or phono-record lawfully made under this title . . . is entitled, without the authority of the copyright owner, to sell or otherwise dispose of the possession of that copy or phonorecord.”
And that interacts with a ban on importing books published overseas:
17 U. S. C. §602(a)(1)’s Reads as follows:
“Importation into the United States, without the authority of the owner of copyright under this title, of copies or phonorecords of a work that have been acquired outside the United States is an infringement of the exclusive right to distribute copies or phonorecords under section 106, actionable under section 501.”
In
Quality King Distributors, Inc. v. L’anza Research Int’l, Inc., 523 U. S. 135 (1998), the US Supreme Court had ruled that 17 U.S.C. §602(a)(1)’s prohibited an overseas publisher from selling books printed overseas in the US, when the publisher only had permission to sell the books in his own country.
What the copyright holder wanted in this case was to expand
Quality King Distributors, Inc. v. L’anza Research Int’l, Inc., 523 U. S. 135 (1998) to include someone who just bought the book. This is what the US Supreme Court rejected, saying that the 17 U. S. C. §602(a)(1) being a codification of the Common Law First Sale Rule, and that u]
Quality King Distributors, Inc. v. L’anza Research Int’l, Inc., 523 U. S. 135 (1998) does NOT apply in this case, for this case involves a BUYER of the book, not someone who had agreed to PUBLISH the book.
In her dissent, Ginsberg holds that the books, being published overseas, is NOT subject to US Copyright laws, and thus the First Sale Doctrine does NOT apply to them, for the violation of the Copyright law is NOT that they were purchased overseas, but the violation was the mere IMPORTATION of said books into the US. Since the violation was the Importation of the book, there have been no prior first sale, and thus the first sale doctrine does not apply.
JUSTICE KAGAN, Concurred with the Majority, but in her concurrence she wanted to restrict
Quality King Distributors, Inc. v. L’anza Research Int’l, Inc., 523 U. S. 135 (1998) in that that decision implied a restriction on the First Sale Rule, that Kagan wanted to more clearly restrict. In that decision, the restriction was clearly Dicta, and everyone admits that, but Ginsberg wants to say since they was no dissent it is binding on the court.
The position of Justice Ginsberg was made fun of by Justice Breyer in his Majority opinion in the following sentence:
Is the Court having once written dicta calling a tomato a vegetable bound to deny
that it is a fruit forever after?
Breyer goes on and say Dicta is Dicta, it is a comment made by the court based on what was presented to it, but since it was NOT needed to decide the case is just a comment NOT holding by the Court.
Side note: The case Breyer is referring to when he points out the Supreme Court ruled Tomatoes to be a Vegetable not a Fruit is a 1893 case regarding tariffs. Under the 1883 Tariff an importer of Vegetables had to pay a tariff, while an importer of fruit did not. An importer of Tomatoes were charged the Tariff, which he paid and then sued the Government for a refund on the grounds Tomatoes were Fruits not Vegetables and thus not subject to the Tariff. The Trial Court ruled that the difference between Vegetable and Fruits is up to common knowledge NOT technical definitions. The Supreme Court ruled the same. While in common usage Fruits contain Seeds, while Vegetables do not that is NOT how many people consider Tomatoes and other similar products. While technically tomatoes have seeds and thus technically it is a fruit, but when actually used by people, the seeds are ignored and tomatoes are used as a vegetable and considered a vegetable by most people. The Court ruled that the Tariff used the words Fruits and Vegetables NOT in a technical way, but as most people consider fruits and Vegetables. Given that finding and that most people used Tomatoes like they used Vegetables and called it a Vegetable it was a Vegetable, even through it contains seeds and thus was technically a fruit.
Now Breyer called the ruling that Tomato were a Vegetable Dicta, that brings up what is "Dicta"? The US Supreme Court Ruling in 1893 just said Tomato were Vegetable for that is what most people consider Tomatoes. If you view the 1893 ruling as to being restricted to a rule that common usage of words over come technical definitions of those same words, then the finding that a Tomato was a Vegetable was Dicta can be justified. On the other hand, if you believe it was important for the Court to decide, if Tomatoes were a Fruit or Vegetable under the 1883 Tariff Act then how can it be Dicta?
Dicta is defined as "an opinion by a court on a question that is directly involved, briefed, and argued by counsel, and even passed on by the court, but that is not essential to the decision".
Thus, while Breyer calls the ruling that Tomato are vegetables "dicta", it was an essential element in the case where that decision was made thus it can NOT be dicta. The finding may no longer be relevant due to changing in the underlying law, but it was NOT dicta when written and the underlying change in the law does NOT make it Dicta today.
For that 1893 Case see:
https://supreme.justia.com/cases/federal/us/149/304/case.html
= new reply since forum marked as read
