Posted on December 13, 2010 in copyright, IP by Brian RoweComments Off

Costco v. Omega was decided (well an opinion was issued) today by the SCOTUS.  The decision is a big let down, the court split 4 v 4 with Kagan not taking part. This is a real mixed message, the bad ruling from the 9th technically stands the decision has no precedential value. This is not an endorsement of 9th Circuit’s decision.  The court did not address any of the issues in the case. view blog

You can read the whole opinion here:

SUPREME COURT OF THE UNITED STATES
No. 08–1423
COSTCO WHOLESALE CORPORATION, PETITIONER v. OMEGA, S. A.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
[December 13, 2010]
PER CURIAM. The judgment is affirmed by an equally divided Court.
JUSTICE KAGAN took no part in the consideration or decision of this case.

That is it! The block quote is the whole thing we do not even know who voted how or why…. I do not know what else to say, the court passed on a really important case that affects copyright distribution, owner rights, and international imports.

In the case take note of the term PER CURIAM it is very important (from wikipedia with minor edit by me under cc-by-sa):

a per curiam decision (or opinion) is a ruling issued by an appellate court of multiple judges in which the decision rendered is made by the court (or at least, a majority of the court) acting collectively and anonymously.[1] In contrast to regular opinions, a per curiam does not list the individual judge responsible for authoring the decision,[1] but minority dissenting and concurring decisions are signed.[2]

Per curiams are not the only type of decision that can reflect the opinion of the court. Other types of decisions can also reflect the opinion of the entire court, such as unanimous decisions, in which the opinion of the court is expressed with an author listed.[3] The Latin term per curiam literally means “through the court”.

This means that the court is not making a ruling that clarifies or speaks to the issues brought up.

This brings up two big issues why such a short decision and what is the impact.

1) Why the court passed?

This is pure speculation, but I thing it has to do with New York.  The Southern District of New York has 4 case currently under consideration on this issue:

John Wiley & Sons, Inc. v. Kirtsaeng, argued on May 19, 2010.
Pearson Education, Inc. v. Liu, petition for leave to appeal deferred pending resolution of Kirtsaeng.
Pearson Education, Inc. v. Arora, briefed, oral argument on January 12, 2011.
Pearson Education, Inc. v. Kumar, not yet briefed
It is possible that the SCOTUS wanted to look at other alternatives before fully addressing this issue.  SCOTUS could have stepped in here with a logical ruling that impacts these cases when deciding Costco v. Omega.

2) What is the impact? This is a big setback for American retailers and consumers. Given that the ruling in the 9th circuit (the west coast) stands importing good could now make you liable for copyright infringement even if you legal own the goods. In areas of the country this is unsettled law and we will not know how it work till we have litigation.

More about costco v. omega w/ court filings and New in IP video explaining Costco v. Omega in plain English.