On 3/11/2015 1:58 PM, [email protected] wrote: > I think the Supremes would consider that case irrelevant today if they > had the opportunity to overrule it, because it depends on the > exclusive right to vend that is conferred in the 1831 Act and in the 1909 > Act, but not present in the 1976 Act. Quite the contrary, cited as a fundamental case on first sale in Kirtsaeng:
A law that permits a copyright holder to control the resale or other disposition of a chattel once sold is similarly “against Trade and Traffi[c], and bargaining and contracting.” ... The “first sale” doctrine also frees courts from the administrative burden of trying to enforce restrictions upon difficult-to-trace, readily movable goods. And it avoids the selective enforcement inherent in any such effort. Thus, it is not surprising that for at least a century the “first sale” doctrine has played an important role in American copyright law. See Bobbs-Merrill Co. v. Straus, 210 U.S. 339, 28 S. Ct. 722, 52 L. Ed. 1086, 6 Ohio L. Rep. 323 (1908); Copyright Act of 1909, §41, 35 Stat. 1084.... The common-law doctrine makes no geographical distinctions; nor can we find any in Bobbs-Merrill (where this Court first applied the “first sale” doctrine) or in §109(a)s predecessor provision, which Congress enacted a year later. See supra, [1364] at ___, 185 L. Ed. 2d, at 405. Kirtsaeng v. John Wiley & Sons, Inc., 133 S. Ct. 1351, 1363-1364 (U.S. 2013) > If the license were > printed on the cover, the supposed buyer would be in a pickle > trying to prove that paying the price didn't constitute acceptance > of the license. Do you have an example where paying for a tangible article has been construed by a court as contractual acceptance of a restrictive term printed on it? Pam Pamela S. Chestek Chestek Legal PO Box 2492 Raleigh, NC 27602 919-800-8033 [email protected] www.chesteklegal.com Board Certified by the NC State Bar's Board of Legal Specialization in Trademark Law _______________________________________________ License-discuss mailing list [email protected] http://projects.opensource.org/cgi-bin/mailman/listinfo/license-discuss
