Also known as:implied license doctrine · implied license
Written by attorneys — see sources below.
A principle that certain conduct by a property owner is treated as granting permission for others to enter or act in a particular manner. The scope of any such permission is limited to the area and purpose that ordinary social norms would allow.
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How its tested
Common Examples
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Dog Sniff on Enclosed Patio
Officers arrived at Lindsay's townhouse with a drug-sniffing dog and walked it through a shared courtyard onto her small front patio enclosed by a low brick wall and furnished with personal seating. The dog alerted at the door frame. Because the patio formed part of the curtilage and the dog's investigative use exceeded the limited permission ordinary visitors enjoy to approach a front door, the alert supplied the basis for a warrant that was the fruit of an unconstitutional search.
Importation of Foreign Editions
A student purchased textbooks lawfully made and sold abroad, then imported them into the United States for resale. Because the copyright owner's distribution right was exhausted upon the first authorized sale regardless of geography, the student's importation and resale fell within the permission the statute supplies by operation of law.
Kirtsaeng d/b/a Bluechristine99 v. John Wiley & Sons Inc.568 U.S. 519 (2013)
John Wiley & Sons, Inc., an academic textbook publisher, often assigns to its wholly owned foreign subsidiary Wiley Asia rights to publish, print, and sell foreign editions of Wiley's English language textbooks abroad. Each copy states that it is authorized for sale only in particular regions outside the United States and may not be exported without permission.
Supap Kirtsaeng, a citizen of Thailand, moved to the United States in 1997 to study mathematics at Cornell University on a Thai government scholarship. While studying, Kirtsaeng asked friends and family in Thailand to purchase copies of these foreign edition textbooks at low prices in Thai book shops and to mail them to him.
Kirtsaeng sold the imported books in the United States, reimbursed his family and friends for their purchases, and retained the profit after successfully completing his undergraduate and doctoral programs. In 2008 Wiley filed a federal lawsuit against Kirtsaeng alleging that his unauthorized importation and resale of the books infringed Wiley's exclusive right to distribute copies under 17 U.S.C. §106(3) and the import prohibition in §602(a)(1).
The District Court rejected Kirtsaeng's assertion of the first sale defense. The jury found that Kirtsaeng had willfully infringed eight of Wiley's copyrighted titles and assessed statutory damages of $600,000. A split panel of the Second Circuit affirmed the District Court's judgment that the first sale doctrine does not apply to copies of American copyrighted works manufactured abroad. The Supreme Court granted Kirtsaeng's petition for certiorari to consider the question in light of differing views among the Circuits.
What conduct exceeds the implied license when officers approach a home?
Bringing a drug-sniffing dog onto the curtilage to explore areas around the front door exceeds the limited permission that allows only ordinary visitors to knock and wait briefly. The physical intrusion by the dog for an investigative purpose constitutes a search.
Does an enclosed front patio qualify as curtilage protected by the implied-license limit?
Yes. A small patio enclosed by a low wall, containing personal furniture visible only from within the unit, and located immediately adjacent to the front door forms part of the curtilage. Officers who direct a dog onto that patio exceed the scope of any implied license.
Does an unlocked gate or maintenance access eliminate curtilage protection?
No. Even an unlocked gate used occasionally by maintenance workers does not destroy the curtilage character of a fenced side yard containing children's toys and located directly beside a bedroom window. Directing a drug dog into that area still exceeds the implied license.
52 N.E.3d 1041 (Mass. 2016)
…be viewed where the unlawful conduct, as in Kendall , 451 Mass. at 15, had the potential to harm both persons and property. The doctrine of necessity has its roots in the notion that "[t]he law deems the lives of all persons far more valuable than any property." United States v. Ashton , 24 F. Cas. 873, 874 (C.C.D. Mass.…
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