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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."
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.
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
http://www.usps.com/postalinspectors/fraud/merch.htm