Last October, as Blawgletter prepared to argue a case to the U.S. Supreme Court the following week, we noted that on the day before "we heard a . . . justice mention 'Coke on Littleton, 1628' — and instantly knew what he meant." We went on:
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?
Today the Court decided the case. Justice Breyer wrote the 6-3 majority opinion, in which Chief Justice Roberts and Justices Thomas, Alito, Sotomayor, and Kagan joined. And, yes, he quoted Lord Coke in support of the Court's ruling that the first-sale doctrine does absolve works "lawfully made" overseas of copyright liability in the U.S. Kirtsaeng v. John Wiley & Sons, Inc., No. 11-687, slip op. 17 (U.S. Mar. 19, 2013) (quoting 1 E. Coke, Institutes of the Laws of England § 360, p. 223 (1628)).
Interestingly, as if to exorcise Coke's defeat in Leegin, Justice Breyer quoted from the Leegin majority opinion, to which he dissented. Id. 18.
The author of the Leegin ruling, by the way, joined the dissent in Kirtsaeng. Just sayin.