There are two notable cases listed among Monday's Supreme Court orders: Kirtsaeng v. John Wiley & Sons and Skilling v. U.S.
Kirtsaeng is a grant, and Skilling is a denial. Let's take a minute to discuss what we will and won't be talking about during the October 2012 term.
The only grant in this week's orders is Kirtsaeng v. John Wiley & Sons, a case examining "gray market" resale of copyrighted works. Last year, the Second Circuit Court of Appeals ruled that Supap Kirtsaeng violated John Wiley & Sons' copyrights when he sold cheap foreign editions of the publishers' textbooks in the United States, reports Thomson Reuters News & Insight.
The first sale doctrine in copyright law allows the owner of a lawfully-purchased copyrighted work to resell it without limitations imposed by the copyright holder. The principal question in the case is whether the first sale doctrine applies to copyrighted works produced outside of the United States, but imported and resold in the United States.
The Second Circuit concluded last year that the first sale doctrine only applies to products physically manufactured in the United States, and that to conclude otherwise would undercut Section 602(a)(1), which prohibits people from buying copyrighted works abroad and importing them into the United States without the copyright owner's permission, according to News & Insight.
The grant is significant because the Supreme Court split on a similar case, Costco Wholesale Corp. v. Omega, S.A., in 2010. Justice Kagan recused herself from that case.
Another notable case to come up in this week's orders is Skilling v. U.S. Former Enron CEO Jeffrey Skilling was convicted in 2006 of conspiracy, securities fraud, making false representations to auditors, and insider trading associated with the Enron collapse.
In 2010, the Supreme Court invalidated one of the grounds of Skilling's conspiracy charge - honest-services fraud - and kicked the case back to the Fifth Circuit in 2010. Last year, Fifth Circuit affirmed Skilling's convictions, finding that the district court committed harmless error when it submitted the honest-services theory to the jury. Skilling once again appealed to the Supreme Court; this time, the Court denied his petition.
In other denial news, the Court also denied petitions from former Guantanamo detainees. The Court has not heard a Guantanamo case since the 2008 Boumediene decision.
While there may not be any Guantanamo or Enron excitement to look forward to this fall, intellectual property attorneys are eagerly anticipating a majority decision resolution on the first sale doctrine in the gray market.
- John Wiley & Sons Inc v. Supap Kirtsaeng (FindLaw's CaseLaw)
- Discounted 'Gray Market' Goods Draw Top U.S. Court Review (Bloomberg)
- Costco Wholesale Corp. v. Omega, S.A. (FindLaw's Supreme Court Blog)
- Supreme Court Vacates Part of Skilling Conviction (FindLaw's Decided)