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Universal Attacks First Sale Doctrine
I Don't Believe in Imaginary Property writes "In Universal Music Group v. Augusto, UMG is attacking the first sale doctrine. The issue concerns some promotional CDs that were mailed out, and later found their way to eBay. According to UMG, the stickers on the discs claiming that they still own the CD give them a legal right to control what the recipients do with them, and thus, UMG should be able to dictate terms. The EFF has filed an amicus brief countering that claim, saying that because they were sent by US mail, unrequested by the recipient, they are in fact gifts, no matter what the sticker claims. If UMG somehow wins this, I plan to send them CD of copyrighted expletives with a sticker informing them of the contractually required storage location. We discussed a similar issue with e-books a couple weeks ago."
CueCat. And it was RadioShack that distributed them. I still have mine -- they read any barcode with a simple mod.
Actually, it is! First Sale applies to legally obtained work. If I'm allowed to give it away under first sale, then when they 'give' me it, it is mine. It's just like having a License Agreement only after you've already used the service, it's non-binding.
This is very similar to the M$ vs Zamos case. Where M$ tried to stop Zamos from selling M$ discs which said "not for retail or OEM distribution."
If i had one dollar for every brain you dont have, i would have $1.
US law says exactly the same thing. They can't send you unsolicited merchandise and then charge you for it, and you don't have to return it if you didn't ask for it. It's yours, and you can do whatever you want with it. Whoever came up with this case should be disbarred for incompetence.
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First sale absolutely applies, as there is plenty of legal precedent that gifts count as sales for purposes of the first sale doctrine. The EFF brief has all the detailed arguments, and plenty of references. It's also quite readable, and quite thorough about dismantling UMG's arguments.
Read the documents. You are advancing hypotheticals that do not apply to the facts of the case. The CDs were delivered primarily through the mail and UPS. That makes them gifts. It does not matter if there was a preexisting relationship. Even if you discount that they were gifts, it was abandoned property. Even if you get past that... Read the article and filings...
The second party has to accept the contract. The man being sued did not accept the contract, and no one is claiming he did. Since there is no dispute, there is no contract law question.
IANAL, but the EFF brief does a very good job of explaining why the CD was abandoned in the legal sense of California law. It meets the requirements of the abandonment law as far as I can see -- they gave up possession, and their actions demonstrated that they did not intend to regain possession at any time in the future. Is there any legal reason that isn't sufficient to constitute abandonment? UMG says it wasn't abandoned, but offer nothing beyond that assertion as evidence -- and the EFF presents case law that says that assertion is insufficient to create a question of fact. So why shouldn't I believe the EFF brief?
As I said, I'm not a lawyer, but I'm interested, assuming the legalese doesn't get overly dense. The EFF brief was quite readable.
Giving away is essentially the same as selling. If you're sent something unsolicited in the mail, then it has deemed to have been given to you just as if you had bought it in a shop or got it as a gift for your birthday. This neatly avoids some very old scams, such as sending a book or an encyclopedia through the mail and then following it with an invoice.
What's going on here is nothing special to CDs - if you send something through the mail unsolicited then it belongs to the intended recipient, and they have every right to do with it as they please within the confines of applicable law. It would be illegal to make a copy of a copyright work without permission of the copyright owner, but it would not be illegal to sell or give it away, so that's fine.
If you had joined a book club then received a book+invoice, fair enough - or in this case joined a 'promo club' with T&Cs - then there might be extra terms in addition to the law (i.e. you entered into a contract). Otherwise the sender can write whatever they want on the object and it doesn't matter - the recipient never agreed to those terms and doesn't have to abide by them, in which case they can treat the object as they would anything else they happen to own.
I agree, I see this as a loan, not a sale. I review software for various publications, and I used to do hardware as well. S/W firms do not ask for their disks back, but I do not feel I have an ethical right to sell this stuff. Same with h/w. The nominal value of the s/w I've had over the years is in the 100's of K$ But I would regard it as wholly wrong to bung the 1500-2000 disks I have been sent on Ebay, regardless of the legalities. I do use it for my own purposes, and the s/w firms like this of course since it means a minor journo is more embraced into their product. I do know that some DJs make a good % of their income from selling CDs they are sent. Some come in promotional packaging which gives them more value to collectors or serious fans. To me there is an issue of potential corruption here. I discount the idea that a major label is significantly hurt by a DJ giving a CD to a friend, but a radio DJ is to me a sort of journalist, and if a supplier gives me something that has a significant realisable cash value, then there is a conflict of interest here. Not one CD of course, but if (say) Umg gives a DJ 50 CDs a week, (they release far more), and he selles them, that's a few hundred bucks per week. When I was at PC Magazine, one staffer requested to be allowed to remain a music reviewer because of the huge wave of free music she got in a narrow speciality. Entertainingly, this may even protect DJs a little against the tax authorities. Say 100 CDs a week, that's 5000 CDs, with a face value of $75-100,000. Is this income ? Is it declared ?
Dominic Connor,Quant Headhunter
Actually, UK law says that if it's sent to you unsolicited, it's yours unconditionally from when you receive it, and it's an offence to demand any form of payment for it or to threaten legal action. I think that this only applies if it's sent to an individual though, the law may be different if it's sent to a business. http://www.out-law.com/page-430#Inertia
Not to be pedantic, but the USPS is no longer a part of the federal government. They are regulated by the federal government. However, the laws on the books still treat the USPS as if it is a part of the federal government. The population of civil servants still working at the USPS is dwindling rapidly. The rest of the employees are no longer government employees.
http://www.usps.com/postalinspectors/fraud/merch.htm
Under U.S. law, what the recipient "owns" is a plastic disc (pretty much irregardless of what data is encoded on said disc). AOL can't deter someone from selling that particular disc -- not arguing that an AOL disc would be worth anything to begin with. It is actually a good consumer protection law, preventing companies from doing things like sending "free samples" and then attempting to bill you for it.
It is essentially a private property issue. This case with the music promotion discs seems to fall along the same lines. I'm pretty sure that Universal is upset because these promo discs are distributed before the actual album is released to the public. Tough beans for them. In America we have a phrase: Indian giver (one who gives away something then tried to take it back). IMHO, the proper resolution is to hold back the promos until the actual album is released and ignore the underground market for these promo discs.
{ - Generic Guy - }
Doesn't matter in this case. Universal sent out the CD to Joe Reviewer. Mr. Reviewer never asked for it, and Universal made no attempt to reclaim it, so the compact disk (not the music on it) is now legally Mr. Reviewers. So he sells it to a used record store, where Mr. eBay buys it and resells it on eBay. At no point does copyright enter the issue, nor does being a business matter.
Cynical Idealist
Fail.
From Wikipedia:
"The United States Postal Service (USPS) is an independent agency of the executive branch of the United States government (see 39 U.S.C. 201) responsible for providing postal service in the US. Within the United States, it is colloquially referred to simply as "the post office", "the postal service", "the mail" or "USPS"."
Everything is subjective.
All I can say, entirely anecdotally, about the USPS, is that it rocks. I get (sometimes) less than 24 hour delivery times in my metro area for 41 cents and I never have to leave my basement. That's just fantastic!
man, I feel like mold.