On December 13, 2010, the Supreme Court affirmed Omega, S.A. v. Costco Wholesale Corp., 541 F.3d 982 (9th Cir. 2008), aff'd per curiam, No. 08-1423 (U.S. Dec. 13, 2010). Justice Kagan did not partake in the consideration or decision in this case. Costco Wholesale Corp. v. Omega, S.A., No. 08-1423 (U.S. Dec. 13, 2010) (per curiam). As the Supreme Court issued an unsigned per curiam opinion, there remains no binding Supreme Court precedent to guide courts in consideration of this issue.
In Omega, the Ninth Circuit held that Quality King Distributors v. L'Anza Research International, 523 U.S. 135 (1998), did not invalidate the general rule in the Ninth Circuit that the "first sale" doctrine, as codified in 17 U.S.C. § 109 (a), can only provide a defense against claims alleging infringement of the exclusive right of distribution where the claims involve U.S.-copyrighted works made or previously sold in the United States with the authority of the owner. Id. at 985. The first sale doctrine holds that "[o]nce [a] copyright owner consents to the sale of particular copies of his work, he may not thereafter exercise the distribution right with respect to those copies." Id. at 985. The Ninth Circuit's holding stated that the first sale doctrine would apply to foreign-made products if there was a sale in the United States authorized by the copyright owner because otherwise a foreign manufacturer would be afforded more protection from the U.S. copyright laws than a U.S. manufacturer....
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