//

There have been a recent spate of news stories about the working conditions in the Foxconn factory that,  as part of its workload , has been producing Apple products such as the Iphone and Ipad.

Foxconn has been in the news recently regarding the working conditions at the factory, and a series of suicides of their workers that are said by some to be partly a result of those conditions.  At interest to more than one Summer Associate was the labor laws currently in effect in China.  If you are a subscriber to Westlaw China you can access our English translation of the Labor Contract Law of 2008 by clicking “Laws and Regulations” and searching “Labor Contract Law of the People’s Republic of China” in the title field.

Among other things, this law prevents an employer from forcing employees to work overtime and requires the employer to pay overtime wages in accordance with the state regulations (Article 31); prevents the employer from holding the identity card of employees (Article 9); and limits non-compete provisions to senior managerial personnel, senior technical personnel and other personnel who are “obliged to maintain confidentiality of the employer” (Article 24).

Of course the enforcement of the Labor Contract Law is an open question as has been widely reported.  There are many stories of it being frequently ignored.  More recently, there have been some stories regarding a more populist trend regarding Chinese workers.  The recent apparent increased bargaining power of the Chinese laborer will have a bigger impact in the end then legislation alone.

//

We have had several Summer Associates call regarding difficulty that they were having determining the history of the Regulations in the Code of Federal Regulations.  Specifically at issue in a few calls have been the new credit card regulations created under the Obama administration.  You can find news stories discussing those here. 

In looking at those regulations some Summer Associates have been confused by the source field into thinking that the regulations have been around for some time, instead of being newly enacted. 

If you run the following search by clicking this link: we get 18 results that are mostly some newly enacted credit card rules.  If you look at bottom of each, there is a Source field.  The Source and Credit fields at the bottom of CFR sections are similar fields with a very important distinction.  The Credit field lists Federal Register documents that have amended the section you are looking at.  The Source field lists Federal Register documents that have affected any section in the Part the section resides within. 

 If you look at the first result in the 17 we get from the query above, (12 CFR 226.51), the Source field is right after the text of the section.  The Source field reads:

SOURCE: Reg. Z, 46 FR 20892, Apr. 7, 1981; 52 FR 43181, Nov. 9, 1987; 54 FR 13864, April 6, 1989; 56 FR 13754, April 4, 1991; 58 FR 17084, April 1, 1993; 59 FR 40204, Aug. 5, 1994; 73 FR 44599, July 30, 2008; 74 FR 36094, July 22, 2009; 75 FR 7818, Feb. 22, 2010, unless otherwise noted.

It is telling us that the first Federal Register document that affects any section within Part 226 is from 1981.  Each of the other listed Federal Register documents affected the part or a section within it, but not necessarily this section.  This section is new and was created February 22nd 2010, as you can see by clicking the last Federal Register document cited in the Source field.

 An example of a section with both a Credit and a Source field can be found by going to the 15th result from our search (12 CFR 567.12).  The Credit and Source field read:

[59 FR 4788, Feb. 2, 1994; 60 FR 39232, Aug. 1, 1995; 62 FR 66264, Dec. 18, 1997; 62 FR 67117, Dec. 23, 1997; 63 FR 42678, Aug. 10, 1998; 66 FR 59666, Nov. 29, 2001; 73 FR 19, Jan. 2, 2008; 73 FR 79607, Dec. 30, 2008]

SOURCE: 54 FR 49649, Nov. 30, 1989; 57 FR 33439, July 29, 1992; 58 FR 4314, Jan. 14, 1993; 59 FR 4788, Feb. 2, 1994; 59 FR 18475, April 19, 1994; 60 FR 45621, Aug. 31, 1995; 60 FR 66715, Dec. 26, 1995; 61 FR 575, Jan. 8, 1996; 62 FR 55493, Oct. 24, 1997; 72 FR 69438, Dec. 7, 2007, unless otherwise noted.

For this section, the Credit field (the top paragraph) is listing the first Federal Register document that affects this section, and then every subsequent Federal Register document that affects this section.  The Source field is indicating every Federal Register document that affects any section in Part 567 .  In short, the credit field tells you about the section you are viewing, the Source field tells you about the Part the section is within.

//

You’re likely familiar with recent cases challenging the constitutionality of the law mandating all individuals purchase health insurance.  Cases are pending in Florida and Virginia U.S. District Courts.

Advancements in these cases are not always deemed newsworthy.  So, to stay ahead of the game,  track these dockets:

• To bring up the Florida case, run this search in DOCK-FL-DCT: DN(3:10CV00091) & DEF(SEBELIUS)
• To bring up the Virginia docket, run this search in DOCK-VA-DCT: DN(3:10CV00188)

TRACKING

From either docket, click “Track this Docket” on the upper left portion of the docket:

Track this Docket Link

Entry Details

var sc_project=5841089; var sc_invisible=1; var sc_security="013ba72d";

We have received contact from several Summer Associates who are interested in being notified whenever there is any new information, before the decision, on pending US Supreme Court cases.

Of particular interest to a few intellectual property summer associates has been Omega vs. Costco, a case the Supreme Court just agreed to hear regarding whether the ’first sale doctrine’ applies to copyrighted material produced and sold outside of the US, and then later imported for sale to the United States.

Costco vs. Omega would seem to have wide reaching implications.  Critics of the 9th Circuit approach maintain that the interpretation of the lower court would allow businesses to control the importation of their goods even after the first sale simply by manufacturing them overseas instead of within the United States.

The dispute in question arose after the bargain chain Costco purchased Omega watches for resale from an overseas supplier.  Three provisions of the Copyright act are implicated. Section 106(3) gives the Copyright holder the authority to distribute copies exclusively.  Section 602(a) gives the Copyright holder the sole authority to import copies that were produced outside of the United States and 109(a) contains the first sale doctrine.

The doctrine of first sale essentially means that once a copyright holder has sold a “lawfully made” copy, they no longer have any control over what the purchaser does with the copy.  You may be wondering why the watches enjoy copyright protection in the first place.  The answer is Omega added a copyrighted globe designe to their watches presumably in the hopes that they might be able to take advantage of the copyright importation protection in 602(a).

Under 9th Circuit precedent in the past, the first sale protection of 109(a) applied only to goods lawfully manufactured in the United States.  In the decision presently being appealed, the 9th Circuit had to determine whether the Supreme Courts decision in Quality King necessitated overruling the 9th Circuits previous precedent.  Quality King held that goods manufactured in the United States, that were then exported and re-imported, did not enjoy the import exclusivity protection of 602(a), due to the doctrine of first sale.

The 9th Circuit distinguished Quality King, and held that since the Omega watches were not manufactured in the United States, they were not “Lawfully Made” under the laws of the United States.  Therefore, the doctrine of First Sale did not apply.  Consequently the court held that Omega enjoyed the exclusive ability to import the watches even after they had already been sold.  The Supreme Court granted Certiorari on April 19th 2010.

There is a great deal of information available for this case already on Westlaw.  First, you can look at the 9th Circuit decision found at 541 F.3d 982.  Secondly, you can find the Petition for Certiorari and any briefs written in support or in opposition with the query:

Westlaw Database: SCT-PETITION

Query: TI(OMEGA & COSTCO)

You might also wish to set up a Westclip alert with the same query in the  SCT-BRIEF database.  Here, you will get an email when any briefs (amicus or party) are filed.  You can also set up the same Westclip in SCT-TRANSCRIPTS to be notified when the transcript of the oral argument is added to Westlaw.  Finally, you can set up a Westclip with the same search in SCT to be emailed when the case comes online.