The Court provides a different explanation for the absence of the untoward consequences predicted in its opinion namely, that lower court decisions regarding the scope of §109(a)’s first sale prescription have not been uniform. Ante, at 23.
Uncertainty generated by these conflicting decisions, the Court notes, may have deterred some copyright owners from pressing infringement claims. Ante, at 23–24.
But if, as the Court suggests, there are amultitude of copyright owners champing at the bit to bringlawsuits against libraries, art museums, and consumers in an effort to exercise perpetual control over the downstream distribution and public display of foreign-made copies, might one not expect that at least a handful of suchlawsuits would have been filed over the past 30 years?
The absence of such suits indicates that the “practical problems” hypothesized by the Court are greatly exaggerated.
Ante, at 24.27 They surely do not warrant disregard