much discussion
discussion within
within the
the industry
industry about
about the
the
much
which the
the Copyright
Copyright Act
Act can
can assist
assist them
them in
in stopping
stopping
which
the infringing
infringing activities
activities of
of importers,
importers, distributors,
distributors,
the
-
availability of
of remedies
remedies under
under the
the Copyright
Copyright Act.
Act.
availability
The
AAMA
hopes
that
this
statement
will
be
helpful
The AAMA hopes that this statement will be helpful
in informing
informing members
members of
of the
the Association
Association of
of ways
ways in
in
in
sellers, and
and buyers
buyers of
of parallel
parallel imports
imports of
of video
video
sellers,
games.
•
games.
AAMA
statement
only advoc
advocacy
(continued from page 79)
AAM
A state
ment only
acy (continue
d from page 79)
(except Nintendo/America)
Nintendo/America) under
under its
its United
United States
States
(except
copyright,
and
did
not
intend
to
do
so.
Therefore,
copyright, and did not intend to do so. Therefore,
the court
court ruled
ruled that
that Elcon
Elcon had
had no
no right
right to
to sell
sell the
the
the
Falcon-made copyrighted
copyrighted video
video games
games in
in the
the
Falcon-made
United States.
States.
United
In a a third
third case
case (226
(226 U.S.P.Q.
U.S.P.Q. 345
345 [S.D.
(S.D . Fla.
Fla.
In
1985)), involving
involving a a polo-player
polo-player design,
design, a a United
United
1985]),
States firm
firm manufactured
manufactured goods
goods incorporating
incorporating the
the
States
copyrighted
design
in
the
Untied
States
and
copyrighted design in the Untied States and
apparently sold
sold them
them in
in the
the United
United States
States for
for export.
export.
apparently
Later someone
someone bought
bought the
the goods
goods abroad
abroad and
and
Later
shipped
them
back
into
the
United
States.
Because
shipped them back into the United States. Because
this fact
fact pattern
pattern was
was different
different from
from that
that of
of the
the CBS
CBS
this
and Nintendo
Nintendo cases,
cases, the
the court
court refused
refused to
to apply
apply their
their
and
principle to
to the
the case
case before
before it.
it. It
It therefore
therefore declined
declined
principle
to
prohibit
the
defendant
from
importing
the
goods
to prohibit the defendant from importing the goods
and
selling
them
in
the
United
States,
at
least
on the
the
and selling them in the United States, at least on
basis of
of the
the information
information before
before the
the court
court at
at the
the time.
time.
basis
thus seen
seen that
that the
the present
present state
state of
of the
the law
law as
as
It It is is thus
to parallel
parallel importation
importation is
is far
far from
from clear.
clear. In
In cases
cases like
like
to
CBS,
the
lower
federal
courts
appear
willing
to
CBS, the lower federal courts appear willing to
prohibit parallel
parallel importation-although
importation- although no
no appellate
appellate
prohibit
court has
has ever
ever passed
passed on
on the
the question,
question, so
so that
that it
it
court
cannot be
be regarded
regarded as
as settled.
settled . When
When the
the fact
fact pattern
pattern
cannot
deviates
from
that
of
the
CBS
case,
however,
deviates from that of the CBS case, however,
copyright relief
relief is
is likely
likely to
to be
be denied.
denied . Moreover,
Moreover, a
a
copyright
number of
of important
important issues
issues have
have never
never been
been passed
passed
number
on.
on.
For example,
example, when
when the
the owner
owner of
of a a United
United States
States
For
copyright
sells
a
video
game
outright,
with
no
copyright sells a video game outright, with no
special reservations
reservations as
as to
to territories,
territories , it it would
would appear
appear
special
that the
the video
video game
game is
is wholly
wholly free
free of
of the
the copyright
copyright
that
fo
r
all
purposes.
The
copyright
owner's
sale
of the
the
for all purposes. The copyright owner's sale of
copyright
product
exhausts
the
copyright
monopoly.
copyright product exhausts the copyright monopoly.
the copyright
copyright owner
owner later
later transfers
transfers the
the United
United
If If the
States copyright
copyright to
to another
another person,
person , that
that fact
fact would
would
States
not
seem
to
be
able
to
cut
back
on
the
rights
not seem to be able to cut back on the rights
customers have
have acquired
acquired on
on the
the basis
basis of
of the
the original
original
customers
sale made
made in
in the
the past.
past.
sale
On
the
other
hand
sale by
by the
the former
former owner
owner of
of
On the other hand, , a a sale
Un ited States
States copyright,
copyright, made
made only
only after
after the
the
a a United
copyright has
has been
been transferred
transferred to
to an
an independent
independent
copyright
third party,
party, is
is at
at least
least arguably
arguably in
in a
a different
different
third
category.
The
third
party
to
whom
the
United
States
category. The third party to whom the United States
copyright
had
been
transferred
would
certainly
take
copyright had been transferred would certainly take
the position
position that
that the
the former
former copyright
copyright owner
owner cannot
cannot
the
confer on
on his
his customers
customers any
any rights
rights under
under a a United
United
confer
States
copyright
that
he
no
longer
owns.
States copyright that he no longer owns.
82
82
.
is thus
thus seen
seen that
that the
the details
details of
of the
the history
history of
of
It It is
the
copyright
and
the
nature
of
the
transaction
by
the copyright and the nature of the transaction by
which the
th e United
Un ited States
Stat es operator
operator came
c a me into
into
which
possessio n of
of the
the printed
printed circuit
c ircuit board
board may
m ay have
have a
a
possession
vital
effect
on
the
rights
of
the
operator
and
those
of
vital effect on the rights of the operator and those of
the exclusive
exclusive United
United States
States distributor
distributor of
of the
the video
video
the
game. The
The AAMA
AAMA statement
statement and
and the
the CBS
CBS case
case cited
cited
game.
in the
the statement
statement simply
simply do
do not
not address
address these
these fine
fine
in
points.
points.
Another unsettled
unsettled issue
issue is
is whether
whether the
the relation
relation
Another
of
the
original
copyright
owner
to
the
United
States
of the original copyright owner to the United States
distributor makes
makes a a difference.
d ifference. Under
Under trademark
trademark
distributor
law, when
when the
the owner
owner of
of a a United
Un ited States
States trademark
trademark is
is
law,
a
subsidiary
of
the
original
manufacturer
(the
owner
a subsidiary of the original manufacturer (the owner
of the
the foreign
foreign trademark
trademark rights),
rights) , the
the Customs
Customs
of
Service will
wi ll not
not exclude
exclude the
the goods
goods from
from entry
entry into
into
Service
the United
United States.
States. Moreover,
Moreover, arguments
arguments have
have been
been
the
made in
in the
the past
past that
that for
for a a parent
parent to
to divide
divide markets
markets
made
with a a subsidiary
subsidiary by
by allocating
allocating trademark
trademark rights
rights in
in
with
this manner
manner violates
violates the
the antitrust
antitrust laws.
On the
the other
other
this
laws. On
hand, under
under the
the patent
patent laws,
laws, this
this type
type of
of division
division of
of
hand,
territories
is
upheld
as
legal
and
effective.
It
is
territories is upheld as legal and effective. It is
unsettled how
how the
the question
question would
would be
be decided
decided under
under
unsettled
copyright law.
law. This
This point
point is
is also
also left
left unaddressed
unaddressed in
in
copyright
the AAMA
AAMA statement.
statement.
the
Finally , the
the statement
statement about
about contributory
contributory
Finally,
infringement in
in the
the AAMA
AAMA statement
statement may
may give
give a a
infringement
misimpression . Since
Since the
the CBS
CBS case
case was
was decided
dec ided by
by
misimpression.
the
federal
district
court
,
the
United
States
Supreme
the federal district court, the United States Supreme
Court decided
decided the
the Sony
Sony case.
case. The
Supreme Court's
Court
The Supreme
Court's
decisions, of
of course,
course, take
take precedence
precedence over
over those
those of
of
decisions,
district courts.
courts. In
In Sony,
Sony, the
the Supreme
Supreme Court
Court ruled
ruled
district
that the
the state
state of
of mind
mind of
of the
the alleged
alleged contributory
contributory
that
infringer
was
relevant,
citing
a
Supreme
Court
infringer was relevant, citing a Supreme Court
patent decision
decision to
to that
that effect.
effect. Specifically,
Specifically, for
for there
there
patent
to be
be contributory
contributory infringement
infringement under
under the
the copyright
copyright
to
law, the
the accused
accused person
person must
must know
know that
that the
the goods
goods
law,
infringe
a
copyright.
This
is
not
the
case,
however,
infringe a copyright. This is not the case, however,
for direct
direct copyright
copyright infringement,
i nfr i ngement , where
where an
an
for
unknowing infringer
infringer may
may be
be held
held liable.
liable. Moreover,
Moreover, it
it
unknowing
should
be
noted
that
crim
inal
copyright
liability
should be noted that criminal copyright liability
attaches only
only to
to persons
persons who
who commit
comm it willful
w illful
attaches
copyright infringement,
infringement , whether
whether directly
directly or
or
copyright
contributorily . Apparently,
Apparently , the
the "sting"
" st i ng " cases
cases
contributorily.
described in
in the
the AAMA
AAMA statement
statement all
all fell
fell into
into this
this
described
category.
On
the
other
hand
,
one
may
w
ell
question
category. On the other hand, one may well question
wh ether any
any defendant
defendant can
can have
have the
the necessary
necessary
whether
criminal
intent
to
infringe
someone's
copy
ri ghts
criminal intent to infringe someone's copyrights
when
the
whole
body
of
law
is
so
fragmentary
and
when the whole body of law is so fragmentary and
unclear.
unclear.
The AAMA
AAMA statement
statement should
should be
be applauded
applauded for
for
The
its
effort
to
clarify
this
unsettled
area
o
f
law.
its effort to clarify this unsettled area of law.
However, its
its discussion
discussion is
is too
too brief
brief to
to cover
cover all
al I of
of the
the
However,
relevant points
points with
with the
the detail
detail that
that they
they need
need to
to be
be
relevant
understood fully,
fully, and
and on
on some
some points
points it it speaks
speaks in
in
understood
unjustifiably
certain
tones
,
given
the
present
unjustifiably certain tones, given the present
unclear state
state of
of the
the law.
law. Moreover,
Moreover, on
on many
many points
points
unclear
no one
one can
can be
be certain
certain what
what the
the courts
courts will
wil l hold,
hold ,
no
because
the
precedents
are
too
sparse
to
permit
because the precedents are too sparse to permit
confident generalization
generalization or
or extrapolation.
extrapolation. Therefore,
Th erefore,
confident
feel that
that at
at this
this point
point one
on e can
can regard
regard the
the AAMA
AAMA
I I feel
statem ent as
as only
only a a first
f irst step
st ep on
on a a long
lo ng road
road to
to
statement
clarifying
this
uncertain
area
of
the
law
for
the
clarifying this uncertain area of the law for the
benefit of
of video-game
video-game operators.
operators. Unfortunately,
Unfortunately, at
at
benefit
this stage
stage each
each operator
operator will
w il l have
have to
to rely
rely on
on the
the
this
advice of
of his
his own
own counsel,
counsel , and
and perhaps
perhaps at
at the
the same
same
advice
time on
on fervent
fervent prayer.
prayer.
•
time
PLAY METER,
METER, March
Morch 1,
1, 1986
1986
PLAY