This issue, organized by Editorial Board member Aaron Panner, dives deeply into a recent Supreme Court decision—Kirtsaeng. Our authors explore the numerous features posed by what may initially look like a simple copyright question. Among the questions asked—and answered—are: Should the exhaustion of U.S. rights depend on the exercise of foreign rights alone? How widespread will the decision be (looking at the example of fashion)? Will this accelerate a movement to licensing and away from sales? Will it encourage the design of a digital first right doctrine? How will this impact market segmentation strategies?
The issue also presents an Of Special Interest feature, looking at the impact of the HSR reporting revisions – did they add to the burden or ease approval?
What makes the Kirtsaeng decision notable is that it makes the exhaustion of U.S. rights depend on the exercise of foreign rights alone. Aaron Panner (Kellogg, Huber)
The most intriguing aspect of the debate over fashion copyright is the occasion it presents for rethinking the expansive copyright law we currently have. C. Scott Hemphill (Columbia Law) & Jeannie Suk (Harvard Law)
How Much Should Control Turn on Ownership? The Alienation of Copyrighted Goods After Kirtsaeng v. John Wiley & Sons
Copyright owners now have every incentive to shift from sales to licenses in order to gain the control they covet. Ariel Lavinbuk (Robbins, Russell)
To properly balance the interests of copyright holders and users, a digital first sale doctrine, if adopted, would need to be much more narrowly crafted than its counterpart in the offline world. John Villasenor (Brookings & UCLA)
The decision to reject a geographically limited first sale doctrine was profoundly wise, even if it leaves copyright owners with fewer weapons in the fight against arbitrage. Brian Willen (Wilson Sonsini)
Of Special Interest – PreMerger Reporting
Ultimately because of or perhaps in spite of the new 4(d), associates, and revenue disclosures, we have noted a positive clearance trend. Deidre Johnson, Simone Waterbury, Jonathan Cheng, & Adam Eckart (Ropes & Gray)