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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."
When would they learn that these actions are just harming them in the long run.
How much money did they 'lose' versus the amount of bad publicity they are getting in the meantime. And let us not forget all the lawyer fees.
In the case where there was a pre-existing contract to even receive the promo disks, it is a completely different story.
This is a case of promos being sent out unsolicited, with restrictions stickered onto the cover.
No, you couldn't copy it, but if they just give you the book, they can't attach a contractual obligation not to resell after the fact. You could sell the copy you received, not make more copies.
Copyright gets more and more ridiculus over time.
They're not doing whatever they want with it. They're selling the physical copy. This is a different.
There was no contract. Therefore, there's no "Well IF they had a contract..." That's totally besides the point. IF they get a contract, then they can expect it to be followed. No one is arguing this.
But if they just send someone a CD -- for free -- then they can't dictate that the person not resell that CD. And since it's for free, I don't know that "first sale" applies.
any attorney associated with this should not be allowed to practice law. any law 101 student can tell you this is pure BS. you have to have a contract before you can enforce one. A contract requires compensation by both parties (both get something) you can't enforce any limits on something you give away for free. This is why often when property is given to charity etc its actually sold for one dollar. You learn this in the first 5 minutes of contract law!!
Next step? Should be obvious, that sticker will be part of every CD sold. You may buy it, but it remains our property.
Impossible? Don't think so. The CD already somehow changed from a necessary evil as a carrier for intangible stuff (you can't simply carry the bits in your hand, so there has to be some sort of place where you put them) to 'the' product. At least that's what the content industry tries to do, and so far quite successfully so. Media shifting is becoming more and more difficult, distributing tools that enable you to media shift easily have been outlawed, and generally the content industry is pushing towards making the medium and the content interchangeable concepts, tying the content to its carrying medium.
This trend does not take into account that I have a valid license to the content (and if it's not, tell me what it is. I certainly don't get to own the content, so please tell me what I get when I purchase the CD). In other words, since that license contract is not limited in time, I should have the right to request the content I bought in case the carrying medium fails for some reason, since moving the content away from its carrier is being made impossible. Do I have the right to get a replacement copy? I wouldn't bet on it. And certainly I would not put any money on being able to get a fresh CD in 10 or 20 years.
If that sticker trick works, soon the only right we'll have around content is paying for it.
We used to have a Bill of Rights. Now, with the rights gone, all we have left is the bill.
except that they did nothing of the sort. you're trying to shift the argument to one that is completely irrelevant in this case. an existing legal contract that is binding is not the same as mailing our media that is intended as advertising verging on SPAM.
Sigs are too short to say anything truly profound so read the above post instead.
I not only read the ARStech article, but the EFF article and the actual motion by the EFF. Assuming that they're quoting relevant cases (I'm not that much of a sucker for that kind of stuff), Universal is talking out their ass and trying to squash first sale rights.
To summarize, they sent out the CDs unsolicited, which according to the law, makes them gifts. That means it's as if the recipient bought the CD, and hence triggered first sale doctrine. So the eBay reseller is in no way whatsoever violating copyright. Especially since the guy in charge of copyright at Universal admits that he has, in the past, bought promo CDs from record shop.
Cynical Idealist
That is entirely a straw man argument; genuinely incurred contractual obligations are an entirely separate matter.
...how on Earth could that possibly justify the notion that a person can be contractually bound by the unasked-for appearance of an inanimate object bearing arbitrary terms? You're right that there's more than just this case---but it is an easy issue and there are not legitimate arguments on both sides.
No one is arguing that if a DJ signs an NDA, he can then turn around and cry, "First Sale, hahahaha!" What we are in fact arguing is that the fact that a disc, sent unrequested, has some words physically printed on it does not constitute a contract.
Consider it this way: The discs, according to TFA, said, "Not for Resale." With whom has the recipient signed a contract? An inanimate object that appeared in his mailbox? What consideration does the recipient gain by this contract that would render it legally supportable?
Remember that contracts require both parties to receive some benefit, even if it's inherently unequal. What benefit does the recipient get by agreeing that the disc is, in fact, not for resale?
Suppose, for a moment, that the recipient does not wish to be a party to the contract in the first place. If he does not agree to it, then doesn't the disc---which was mailed to him without any prior agreement---simply exist as his property? Why shouldn't he be able to sell it, regardless of what's printed on it?
The basic consideration is this: even if we assume that UMG is so incompetent and lazy that they cannot be bothered to arrange even oral agreements with potential reviewers AND we are absolutely desperate to ensure that UMG keeps sending out discs...
If you can look me in the eye and tell me that you're okay with the notion that I can write "You must give me all your money" on a baseball, hurl it at your head, and thusly legally obligate you to obey my baseball---all to save UMG the trouble of asking DJ's to agree in advance not to share promo discs; then I can look you in the eye and call you an idiot.
By reading this comment, you agree that 10% of your gross income belongs to Twitter. I know that you did not ask for this but you will be one of the first few to read it and that, by your own argument, is worth more than your freedom. Be glad I don't ask for more, but Moses once argued that a happy slave is more productive than a hungry one so this works out for both of us.
Seriously, it's that bad. If the MAFIAA was not happy with people selling their crappy little promo copy, they could simply strike those people off the promo list. That's easier and cheaper than filing a laughably stupid lawsuit. The only explanation for the suit is that the MAFIAA needs the DJs more than the DJs need the MAFIAA and the only way to make the DJs do as they are told is to harass them with lawsuits. Let's hope the MAFIAA loses this one and has to pay cost and damages.
Friends don't help friends install M$ junk.
Both posts are true, but before we talk about the hyperbole of "absolutely clear cut" and "they should be disbarred" a point of clarification is in order.
At common law in most of the U.S. and England, when there's a prior relationship between the parties--even if unrequested (that may well be the case here; it's not as if they're sending these out of the blue), treating unsolicited merchandise as your own may constitute an acceptance. If it's not an acceptance, it's the tort of conversion.
See both the Restatement (Second) of Contracts  69 and Section 2-606 of the Uniform Commercial Code. There is an exception, however, in modern U.S. law for items sent through the postal service. See 39 U.S.C.  3009.
Before we rant too much, you ought to have some sense of the history here. Again, this is not a COPYRIGHT case--fair use is a red herring here. This is a contract case.
Want to take people's rights away? Make them sign a contract. No contract? Don't run crying to mommy when they take advantage of their legal rights.
That's exactly the question. Calling the CD a gift also answers the question. It would be better to frame it as "is accepting the CD sufficient to create a contract."
That's an open question. Despite what some people have said on here, acceptance can be manifested by "any act inconsistent with the seller's ownership" UCC 2-608. Silence is not acceptance, but it's a thin line to acceptance.
Through the mail may be a different issue, but remember this is because of 39 USC 3009, not inspite of it.
Wow, that is crazy they pulled it even though it was 5 years old! Do you know if it was pulled by an automated system or not? If it was something like a computer program that checks the auctions for "CD" and "Promo" and then pulls the auction if both of those are found then that would not be as bad but that still would be horrible to have happen. If it was a human screener on the other hand then this is just crazy and probably the result of some draconian standard operating procedures being in place.
On another note, what effect would this have on collectors if Universal wins? Collectors usually want EVERYTHING and rare things such as this CD are worth even more to them. I know this is just eBay and collectors can always go to stores/swap meets/etc but it is just hard to me to understand how something sent to you for free and unsolicited cannot be sold.
Hey, there is only one Return and it's not of the King, it's of the Jedi.
Another angle is that UMG put an object into someone's mail box. If they don't want that object to be treated as a gift for the recipient to be done with as they pleased, and if there is no prior agreement for that object to be placed there, they are effectively dumping litter, just as if they had placed an empty coke can in the mail box. I should imagine there's laws on dumping or 'fly tipping' in most states, and UMG must be doing it on a grand scale, so if they win this case they should be prosecuted on those grounds.
Fringe groups A,B and C are buying less CD's, so CD's must be dying. Except that not-so-fringe group D (Being the other 95% of the population that are not Audiophiles, DJ'd or Rappers) are simply never going to be interested in Vinyl ever again.
Digital Distribution may kill CD's, vinyl sure as hell won't.
Support the EFF so they can keep stomping stuff like this!
Then of course they could enforce this contract. The whole point is that they are trying to UNILATERALLY take away legal rights of people WITHOUT any contract. If you allowed this there is no doubt they would be slapping all kinds of restrictions on every CD, book, DVD they produced.
the world would be better off if the person with the physical object gets to resell it, no matter what the contract says. But is the world better off if Universal sees what happens and stops giving out review and promo copies?
Universal is free to try to make contracts with reviewers before sending them CDs. They choose not to, not wanting to annoy them. Their choice. Will the world be better off? Excuse me while I snicker.
And Universal is going to quite logically not send out promo copies
No, quite logically they will. They NEED promotion. They spend more on promotion than any other single expense. If promotional items turn up on eBay months later, so what? There are only a relative handful of these. If people reproduced them that's another case entirely. Only rabid collectors want this kind of thing, and they buy every release of their favoured artist anyway.
I've got a bunch of prepublication copies of books, various people in the trade have donated to a local thrift shop. Publishers have been sending these out to reviewers and purchasing managers for CENTURIES, and for centuries, the reviewers have given them away or sold them later. It's been going om in music ever since 78 RPM records. There is demonstrably no damage to the music publishers. The only reason it's an issue now is that it's more visible, being on eBay. But the actual number of discs on offer is the same as ever.
Yes, I had misread the scenario. Thanks for the corrections. I guess I deserved that "(Score:-1, Offtopic)". :)
Nor Am I A Lawyer (NAIAL), but there is a variant of that labeling that sheds light:
"*Not Labeled* for individual sale". The shortened you mention only serves to masquerade as a contract problem. The labeling situation means that the original company met the food labeling requirements on the external package only. This means that if you tried to sell the individual units, you would be acting as a reseller, but the responsibility for selling an insufficiently labeled item falls to you. If you taped copies of the external ingredients labeling to the smaller units, you might be okay.
Disclaimer: I am not a lawyer but a law student.
I don't think the issue is as cut and dry as you say.
While it's clear that the mere receipt of a gift is not binding as a contract, and that under normal circumstances silence is not acceptance, retention of a good may be sufficient to justify enforcement of a shrinkwrap contract. (e.g., if consideration requirements are met. [Note to nonlawyers--The fact that gifts aren't binding is due to the lack of "consideration," a legal term meaning a "bargained-for exchange."])
In Hill v. Gateway 2000 , Judge Easterbrook held that retention of goods with a reasonable opportunity to return the merchandise can make a contract binding. 105 F. 3d 1147 (7th Cir. 1997).
In Hill, consideration wasn't an issue (goods were purchased), but I believe the reasoning is broad enough to allow implied consideration via retention and use. Easterbrook's reasoning didn't turn on whether the good was solicited or not, and could treat retention as an acceptance of an entire contract, including an implied exchange of consideration not expressly stated (a "bargained-for exchange," where Universal gains their publicity purpose and the recipient gains use of the media). It's weak, but the argument is there.
Additionally, Hill wasn't without controversy-- Klocek v. Gateway rejected this reasoning, in my opinion rightly, because it didn't apply the proper UCC analysis. 104 F.Supp.2d 1332 (D. Kan. 2000).
So in short, the requirements of a contract still need to be met, and the unsolicited nature of the 'gift' weighs heavily against this, but I can see the decision coming out the other way so long as the court 1) subscribes to the Easterbook reasoning, and 2) finds that retention and use of the object sufficient to satisfy consideration requirements. Not likely, but it wouldn't be as strange as, say, people having tentacle heads.
As a professor, I'm inundated with unrequested "examination copies" of textbooks (oftentimes irrelevant for the subfields I teach). Nowadays these same annoying shipments come with specially printed covers outlining all the restrictions on what I can do with the books I didn't request and don't want.
Preferentially, I'll do the rep's work for them and give the book to a professor who might actually find it useful. If there are no takers, I'll dump the books near the grad students' office and offer them first dibs. And, generally speaking, I won't adopt other books from those publishers because I know they're racking up huge bills with these unnecessary promotions and special printings that end up being reflected in the insane costs of textbooks (particularly those for introductory level courses).
ancarett, historian and zombie gamer
"Not For Resale" was probably put there by one of their lawyers in the first place to avoid some retail tax or artist royalty.
I don't know if Macthorpe posted that AC, though I doubt it. I'm genuinely curious though - you object to someone pointing out that twitter has created a little army of sockpuppets that shill each other's posts, but the fact that he's gaming the moderation system is perfectly OK with you?
The twitter monologues. Click on my homepage and be amazed.
At what point does UMG qualify as a "vexatious litigant"?