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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.
I don't think this is a First Sale issues, since, clearly, the discs are at no time sold. They send them promotionally to people in the recording, film, and media industries for review, evaluation etc. I get them all the time because some random label hopes I'll tell a director to put in these "hot new tracks" (or not). They got a big sticker on them that says, essentially, "NFR". I don't think they're the property of the label, strictly, but the labels and the media endpoints that consume the NFR discs both benefit from having them. Maybe selling them is de jure legal, but it's really dickish.
Any developers wanna opine on how they'd feel if some software reviewer at cnet started selling their NFR copies of pre-release software?
Don't blame me, I voted for Baltar.
Dear record companies:
When your own VP of content protection admits in a deposition that he has bought some of your promo CDs on the second hand market, your case that someone selling them on eBay is infringing your copyrights starts to look, well, ridiculous.
(EFF Brief, page 18.)
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.
CueCat. And it was RadioShack that distributed them. I still have mine -- they read any barcode with a simple mod.
Unsolicited packages are gifts, as long as you're the intended recipient (and yes "The Occupier" counts). (Unsolicited Goods Act, Consumer Protection [Distance Selling] Act).
I would say "I can't believe the US doesn't have similar laws", but I can, because I recognise a country where Corporations have a massively disproportionate sway on legislators.
Athletic Scholarships to universities make as much sense as academic scholarships to sports teams.
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.
Pretty soon we'll have implants in our heads that will debit our accounts every time we recall a song from memory. Got that Shakira piece stuck in your head again? Boy, you are going to pay....dearly. Shakira-Sha--SHIT!!!
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!!
I don't know Mr. 741N, you sound a little biased.
You got some evidence that vinyl is growing?
Can you be Even More Awesome?!
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
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.
The way to deal with reviewers who doesn't treat your unsolicited promo material with proper discretion, is to stop sending unsolicited promo material to those reviewers. It's not an easy issue and there are arguments on both sides. Yes, on one side there is respect for the fundamentals of contract law. On the other side, there is the slight inconvenience of labels to have to maintain a list of trusted reviewers (rather than just maintain a list of reviews).
It does say something about how the labels have gotten adjusted to having the law formed for their convenience, that they now want to change how the legal system works, just to avoid the inconvenience of making some minor changes to their internal procedures.
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.
This happened to my pal who owns a record shop. He found a *5* year old madonna promo in the back shop. Stuck it on ebay to see what he'd get and the auction got pulled.if it was a pre-release, fair enough. But it was 5 years old...
Acid House saves Souls
Idiot or not, baseballs and markers are damn cheap cheap.
...if it succeeds, then you can surely be held responsible for all those AOL CDs! ;)
I hope you kept them in a safe place
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...
I don't know Mr. 741N, you sound a little biased.
That would be the resistor between pin 6 and pin 2.
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.
these lawyers should really read there own briefs. There is no copyright law in play here. Universal is the copyright holder and Universal made the copies. filing a DMCA is harassment and abuse of process. By there own statements there claiming that they own the cd's ... So its a case of selling stolen property. There saying to original recipients did not have standing to sell the cds to the defendant. But i can guarantee the cds are not listed as assets by the company. So we have a company claiming this guy is selling stolen merchandise that in other legal fillings (read SEC) they don't claim to own. If this guys lawyers are any good he'll retire to a nice island in the bahamas after this.
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.
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)". :)
Does AOL own the 10 billion discs they mailed-out?
Maybe we should all unite and send them back..... them videotape the scene as the AOL office finds itself buried under a massive mound of discs.
The government is not your daddy. Its purpose is not to raid middle-class neighbors' wallets and give it to you.
"There was no contract."
Bugger, I've just mailed them photo with a EULA that takes effect when they open the envelope, and a bill for...(cue: pinky)...ONE MILLION DOLLARS.
And did you exchange a walk on part in the war for a lead role in a cage? - Pink Floyd.
If you're going to ask questions just to see an answer, that is.
How about: what about if the CD sticker said that by reading the sticker you agree to deep throat the VP of marketing? Would that be legally binding?
I mean, if we're going to be making shit up and all, just to ask hypothetical questions, why not go for the gusto?
eff universal
There is no right to feel safe thru security vaudeville at the expense of everyone's freedom, privacy and tax money.
And the rarely if ever do you get a CD before the street date. Maybe a week or two. But good artists? Nope never happens. What they typically do is invite you to a listening party to review it (while at the same time showering you with food and drink to bribe a good review out of you.)
And the REAL truth is the CDs ARE paid for. They charge the artist for "promo" copies as part of advertising. Universal claiming these are their CDs is about as big a joke as the RIAA in general. They where bought by the artist... if anyone has the right to tell people what to do with them, its the guy who's salary was raped by the suits.
"Slashdot, where telling the truth is overrated but lying is insightful."
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
The "unrequested" word is the hole in EFF's argument. Many radio stations and music publications have websites with some language of the effect: Send promotional materials to this address. That's a request as far as I'm concerned. My wife is an independent recording artist, and at first it pained her to see the promo copies on eBay and Amazon marketplace competing with the real product, but at least the music is out there. We don't sue anybody; we just ink the name of the station or publication onto the face of the CD. The descriptions of the used product for sale let us know where not to send promo CDs in the future. As an aside: Surprisingly few radio stations and publications will accept any digital form of promotional materials!
"Not For Resale" was probably put there by one of their lawyers in the first place to avoid some retail tax or artist royalty.
"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--"
I laughed at the silliness of this when I read it, but I did take the time to test this thesis. Here's the thing: it worked! Admittedly, I used a small statistical sample, but I'm heading out to Boston Commons right now to conduct further tests. I am carrying several other baseballs as well, some read "You must provide oral sex" and "You cannot arrest me under any circumstances". I'll let you know how that works out.
The crimes of eBay are a disgrace to it's pig latin heritage!
Just make sure that your aim is good and that you don't switch the baseballs by mistake!
My sci-fi novel, Ghost Thief, is now available from Amazon.com.