actual act of importation can obviously be held liable, but the instant case does not present that situation. Plaintiffs do not allege that Jan Bell imported or otherwise brought the figurine at issue into the United States. Plaintiffs allege that defendant sold a good that had been imported without authority. The issue in this case, then, is whether a party who purchases infringing goods from a person who imports them can be held liable under § 602.
Because neither the statute nor its legislative history provides a definition, the court will give the term "importation" its plain meaning. See Smith v. United States, 508 U.S. 223, 228, 124 L. Ed. 2d 138, 113 S. Ct. 2050 (1993) ("When a word is not defined by statute, we normally construe it in accord with its ordinary or natural meaning."); In re Merchants Grain, Inc. By and Through Mahern, 93 F.3d 1347, 1353 (7th Cir. 1996) (stating same rule). "Importation" is defined as "the act of bringing goods and merchandise into a country from a foreign country." Black's Law Dictionary 755 (6th ed. 1990).
Because plaintiffs have offered no evidence that defendant brought goods into the United States from a foreign country, defendant cannot be held liable for an act of "importation."
Two other considerations support giving "importation" its plain meaning. First, the legislative history of the statute does address the situation presented in this case (i.e., where lawfully made copies are imported into the United States, and if distributed, would infringe the U.S. copyright owner's exclusive rights). In explaining the scope of § 602 in this situation, the legislative history discusses only "the mere act of importation" and says that act "would constitute an act of infringement and could be enjoined." Notes of Committee on the Judiciary, H.R. Rep. No. 94-1476, at 170 (1976). The legislative history says nothing about the subsequent distribution of the infringing imported goods.
Second, allowing copyright owners to sue distributors under § 602 violates the rule that courts should "construe statutes in the context of the entire statutory scheme and avoid rendering statutory provisions ambiguous, extraneous, or redundant." In re Merchants Grain, 93 F.3d at 1354. Allowing suit for infringing distributions under § 602 would render § 106(3) of the Copyright Act redundant, as § 106(3) also allows copyright owners to sue for infringing distributions. See 17 U.S.C. § 106(3)(1994). The result would not be merely an abstract violation of a canon of statutory construction; it would have important potential consequences for the defendant because, while § 106(3) permits the "first sale doctrine" as an affirmative defense, the same may not be true of § 602.
The court is aware of contrary decisions holding that subsequent distributors of goods imported without authorization can be liable for "importation" under § 602.
See Parfums Givenchy, Inc. v. Drug Emporium, Inc., 38 F.3d 477 (9th Cir. 1994); Columbia Broadcasting System, Inc. v. Scorpio Music Distributors, Inc., 569 F. Supp. 47 (E.D. Pa. 1983). However, we believe the issue is governed by the plain language of the statute and that it is unnecessary to resort to the policy considerations relied on in these decisions and urged by the plaintiffs in this case.
Plaintiffs' motion for partial summary judgment is denied.
DATED: February 2, 1998
John F. Grady, United States District Judge