After literally years of waiting, we've finally gotten a ruling from the Ninth Circuit in the (second) Omega v. Costco appeal...

Posted by Charles Colman

But even after all this time, the majority opinion doesn't contain a holding on copyright misuse!!!

 

The still-amorphous equitable defense is, however, addressed in the much more in-depth opinion concurring in the judgment (which, appropriately, calls out the other two judges on the panel for basing their ruling on a legal issue not even in dispute at this point in the litigation -- the so-called "first sale" doctrine -- rather than the "copyright misuse" question that was actually briefed and argued before the appellate court.)

 

Analysis and commentary forthcoming...  (Sorry, it's a busy week; classes just started up again at NYU Law, and courses in other divisions of the university begin this coming Monday.)  [UPDATE (2/6/15): You know, I think I'm just going to have to share my thoughts on the Omega decision at this February 19th panel/CLE co-hosted by NYU Law and The Copyright Society of the USA.  Register ASAP!]

 

Costco v. Omega, 11-57137 (9th Cir. Jan. 20, 2015) (on appeal after remand)