Depending on how the Court rules, the Costco case will determine whether copyright owners can use their intellectual property rights to shut down the gray market. It’s in their interest to do so. After all, the availability of these products saps profits by undercutting the generally higher prices that comparable goods can fetch in the U.S.
Defenders of the gray market—who prefer the rosier term “parallel importation”—maintain that such resales are clearly protected by the so-called first-sale doctrine. That rule authorizes buyers of copyrighted goods to more or less do what they please with them—including resell them.
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