What is the burden of proving the first sale defense?
MultiRegion, United States of America
The following excerpt is from UMG Recordings, Inc. v. Augusto, 628 F.3d 1175, 97 U.S.P.Q.2d 1244 (9th Cir. 2011):
While it is an open question as to whether the plaintiff or defendant bears the burden of proving the applicability of the first sale defense, see United States v. Wise, 550 F.2d 1180, 1191-92 (9th Cir.1977) (government bears the burden of proof in the criminal context), we need not reach the issue in this case, because we would reach the same conclusion regardless of which party were to bear the burden.
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