Supreme Court Update: Florida v. Jardines (11-564) and Kirtsaeng v. John Wiley & Sons, Inc. (11-697)

March 27, 2013 Supreme Court Update

Greetings, Court fans!

We're back with the first game of a triple-header. In this round, we'll bring you Florida v. Jardines (11-564), considering whether a police dog's hunt for the scent of drugs constitutes a search for Fourth Amendment purposes (the Court loves dog sniff cases lately) and Kirtsaeng v. John Wiley & Sons, Inc. (11-697), on the legality under the Copyright Act of importing textbooks lawfully manufactured abroad but subject to US copyright protection. We'll be back soon with more Updates, including a duo of class action cases (that will come as bad news to the plaintiffs' bar).

Close on the tail of February's decision in Florida v. Harris, the Supreme Court has issued its second opinion of the term involving Florida's drug-sniffing dogs-in-blue. In Florida v. Jardines (11-564), the Miami-Dade Police Department and the DEA conducted surveillance on the home of Joelis Jardines based on a tip that Jardines was growing marijuana. Two detectives approached the home with a dog named Franky who was trained to indicate the presence of drugs. Near the porch, Franky caught a whiff and began tracking the odor back and forth. The pooch ultimately sat at the front door, signaling that it was the strongest point of the odor. On that basis, one of the officers obtained a search warrant. When the search turned up marijuana plants, authorities charged Jardines with trafficking in cannabis. At trial, Jardines argued that the dog's investigation was an unreasonable search and moved to suppress the plants. The Florida Supreme Court ultimately agreed, holding that the use of the dog was a search unsupported by probable cause.

Justice Scalia wrote for a majority that included the rather unusual combination of Justices Thomas, Ginsburg, Sotomayor, and Kagan. The Court considered the case "straightforward": officers were gathering information in the curtilage of Jardines' house, which the Court has long held deserves the same Fourth Amendment protection as a home itself. There, without the homeowner's permission, the officers and Franky physically entered to conduct their investigation. Constitutional protection against searches in one's home – a place "first among equals" where the Fourth Amendment is concerned – "would be of little practical value if the State's agents could stand in a home's porch or side garden and trawl for evidence with impunity." And there could be little doubt that Jardines' curtilage was protected space as "[t]he front porch is the classic exemplar of an area adjacent to the home and ‘to which the activity of home life extends.'" Having found that the porch was a protected area, the Justices went on to conclude without difficulty that the officers committed an unlicensed physical intrusion as Jardines plainly had not given them permission – even implicitly – to enter the area with the dog. While an officer may surely approach a citizen's door and knock, bringing a trained drug sniffing dog to explore the area in the hope of finding incriminating evidence is an entirely different thing. As the Court explained, "[a]n invitation to engage in canine forensic investigation assuredly does not inhere in the very act of hanging a knocker." The Court rejected arguments stemming from the "reasonable expectation of privacy" standard for Fourth Amendment protection grounded in Katz v. U.S. (1967), finding no need to address Jardines' expectation of privacy since the search in question occurred at his home, and Katz "has been added to, not substituted for" a traditional property-based understanding of the Fourth Amendment. Justice Kagan penned a concurrence, which Justices Ginsburg and Sotomayor joined. To the concurring justices, the dog sniff not only invaded Jardines' home, but also trampled his "reasonable expectation of privacy" under Katz, and the case would have come out the same way under either line of reasoning.

Justice Alito, joined by the Chief and Justices Kennedy and Breyer, dissented. The dissent noted that the law of trespass gives members of the public license to approach the front door of the house and remain there briefly. Here, the officers and Franky approached the house via a driveway and paved path and remained at the front porch less than two minutes. The law is clear that officers may approach a home for the purpose of gathering information, as they do when speaking with a home's occupant as part of a "knock and talk." And just as officers – like other members of the public – have a license to approach a house, they may "see, hear, and smell whatever can be detected from a lawful vantage point." The dissenters were critical of the majority for offering no precedent – despite the fact that "dogs have been domesticated for about 12,000 years . . . and their acute sense of smell has been used in law enforcement for centuries" – suggesting the right to approach a home by a route customarily used by visitors and staying for such a short period is limited simply because an officer approaching a house happens to have a dog in tow. "If bringing a tracking dog to the front door of a home constituted a trespass, one would expect at least one case to have arisen during the past 800 years." To the dissenters, the Court's decision was also inconsistent with the Katz expectation of privacy test, as "a reasonable person understands that odors emanating from a house may be detected from locations that are open to the public, and a reasonable person will not count on the strength of those odors remaining within the range that, while detectible by a dog, cannot be smelled by a human."

Next, in Kirtsaeng v. John Wiley & Sons, Inc. (11-697), the Court addressed whether a buyer of a copyrighted textbook, which was lawfully manufactured and purchased in Thailand, could import and sell the textbook in the United States. Plaintiff John Wiley & Sons, Inc. publishes academic textbooks that are protected by American copyrights. Wiley produces two versions of its textbooks: (1) an American version printed and sold in the US and (2) a foreign version printed and sold exclusively abroad. Defendant Kirtsaeng, a citizen of Thailand, was in the United States to obtain a Ph.D. in mathematics. Kirtsaeng's relatives lawfully purchased Wiley's foreign version textbooks in Thailand (which were markedly cheaper) and mailed the books to the US, where Kirtsaeng sold the books for a handsome profit.

Wiley sued, alleging that Kirtsaeng had infringed Wiley's copyright by importing its foreign version textbooks without permission, in violation of the Copyright Act's ban on unauthorized imports, 17 U.S.C. § 602(a)(1). Kirtsaeng countered that his sale of books was protected by the "first sale" doctrine, 17 U.S.C. § 109(a), which permits a lawful buyer of a work that is "lawfully made under this title" to subsequently sell or dispose of the property. The District Court held that Kirtsaeng could not raise the "first sale" defense because the doctrine did not apply to foreign-manufactured goods. The Second Circuit affirmed, holding that the term "lawfully made under this title" placed a geographic restriction on the "first sale" doctrine.

The Court reversed, with Justice Breyer taking the pen for the 6-3 majority. The Court found that § 109(a)'s plain language favored reading "lawfully made under this title" to mean "in compliance with." Section 109(a), the Court noted, makes no reference to geography. A nongeographic reading gave import to each word of the phrase: "lawfully made" distinguished between authorized and pirated copies while "under this title" set forth the law with which to measure "lawfully." By contrast, the Court found that the geographic interpretation "bristles with linguistic difficulties." For example, Wiley argued that "under" meant "in conformance with the Copyright Act where the Copyright Act is applicable," an interpretation that the Court rejected as untenable given the inherent ambiguity regarding the geographic scope of the Copyright Act.

The Court also found support for its interpretation in the historic and contemporary statutory context. The predecessor of § 109, the Court noted, permitted the "first sale" defense to be used by those in lawful "possession" of a copyrighted work. This section was changed to distinguish a purchaser/owner of copyrighted work from a mere licensee or lessee. It was unlikely that Congress had implicitly woven a geographic requirement into the amendment when making this change. Moreover, Congress had gradually phased out geographic requirements from other sections—it deleted a section that applied only to works manufactured in the US or Canada—demonstrating a congressional preference against geographic limitations. The Court also noted that "lawfully made under this title" was used in a number of other sections of the Copyright Act, none of which were subject to any geographic limitation.

Not satisfied with its exhaustive statutory interpretation, the Court expansively reviewed the common law origins of the "first sale" defense, dating back to 1628. Drawing on sources ranging back to Lord Coke, the Court found that common law doctrine never included a geographic limitation. The Court then invoked the practical implications of imposing a geographic limitation on the "first sale" defense. The Court noted that reliance upon the "first sale" doctrine is "deeply embedded" in the practices of booksellers, libraries, museums, and retailers, all of whom relied upon its protection.

Justice Kagan concurred, but recognized that the Court's decision, when combined with a prior decision in Quality King Distributors, Inc. v. L'anza Research Int'l, Inc. (1998), substantially narrows § 602(a)(1)'s ban on unauthorized importation. However, in Justice Kagan's view, it was Quality King, not the present case, that was wrongly decided. Quality King held that § 602(a)(1) did not apply to items subject to the first sale doctrine, rejecting the SG's cogent arguments to the contrary. While Justice Kagan dissented in Quality King and appeared to disagree with the result here, she joined the majority opinion, explaining "the Court today correctly declines the invitation to save §602(a)(1) from Quality King by destroy­ing the first-sale protection that §109(a) gives to every owner of a copy manufactured abroad. That would swap one (possible) mistake for a much worse one, and make our reading of the statute only less reflective of Congres­sional intent."

Justice Ginsburg penned a lengthy dissent, which Justice Kennedy joined in full and Justice Scalia joined in part. The dissent argued that the Court's opinion undermined Congress's intent to protect copyright owners against the unauthorized importation of low-priced, foreign-made copies of their copyrighted work. The dissent noted that in Quality King, the Court had addressed this very scenario in dictum and had found the "first sale" defense to be inapplicable. The dissent argued that the Quality King dictum was supported by the clear import of the statute. Reading a geographic limitation into § 109(a), the dissent reasoned, would be consistent with the Court's interpretation of similar language in other statutes. Moreover, the Copyright Act does not apply extraterritorially. Turning to the plain language, Justice Ginsburg noted that "under" usually connotes "a relationship of subjugation." Therefore, copies made "under" the Copyright Act must have been made subject to the Copyright Act, which means they must have been made in the US.

Moreover, Justice Ginsburg argued, the majority's approach improvidently reduced the unauthorized importation ban of § 602(a)(1) and ran contrary to the international trade policy of the US. Turning first to § 602(a)(1), Justice Ginsburg argued that the majority's version of § 602 only prohibits unauthorized importation by those who possess, but do not own, the imported copies. Had Congress only intended to protect against "larcenous lessees, licensees, consignees and bailees, it would have likely used language to that effect." The majority's position also "overwhelmed" the exceptions to the importation ban set forth in § 602(a)(3), which allows importation for government, personal, scholarly or religious purposes. Justice Ginsburg then reviewed the legislative history of § 602(a)(1), which confirmed that Congress intended to provide copyright owners with a remedy against the unauthorized importation of copyrighted material even if it was sold abroad with the copyright owner's authorization. Justice Ginsburg also noted that the majority's position was contrary to the US's position in international trade negotiations with regard to the theory of "international exhaustion." According to Justice Ginsburg, the US has steadfastly embraced a "national exhaustion" scheme, under which a copyright holder may prevent the unauthorized importation of copies of their work sold abroad. Finally, Justice Ginsburg noted that the parade of horribles trotted out by the majority had not occurred even though a few district courts had embraced the geographic restrictions of the "first sale" defense.

We're sniffing our way through a few more recent decisions and will be back soon. In the meantime, thanks, as always, for reading!

Kim, Jenny & Julie

From the Appellate and Complex Legal Issues Practice Group at Wiggin and Dana. For more information, contact Kim Rinehart or any other member of the Practice Group at 203-498-4400