Slashdot Mirror
EFF Wins Promo CD Resale Case
DJMajah writes "Universal Music Group's case against Troy Augusto, fought by the Electronic Frontier Foundation, has been dismissed by a federal judge. UMG sued Augusto, the owner of Roast Beast Music, over 26 eBay listings of promotional CDs. UMG argued that promo CDs distributed for free to radio stations, DJs and other industry insiders could not be resold; the discs usually carry a label reading 'For promotional use only, not for resale.' UMG asserted the doctrine of first sale does not apply, as the discs were not actually sold and therefore remained UMG's property. The judge ruled that the doctrine does apply because the discs were gifts. The labels indicate no expectation of their return."
Allow me to be the first here to say: It's about fucking time.
Kid-proof tablet..
I'm sure in the future they will modify their labels to require the return of promo materials.
Go go EFF!
it would DEFINITELY be to the EFF. What heroes they are, in today's world!
It is pitch black. You are likely to be eaten by a grue.
Will this then apply to books who have had their cover torn off and returned to the publisher? Most of those books carry a "if the cover is missing this book cannot be resold" blurb. Booksellers who can't sell a quantity of trade paperbacks return the front cover in lieu of the entire book for a refund. It saves on shipping and the publisher doesn't want the unsold books back anyway. So would these be considered 'gifts' to the bookseller, and presumably under this ruling also viable for resale?
We can now expect to see them add a little "please return this CD to us when you're finished with it" to each promo disk.
Kevin Smith on Prince
There goes promotional copies of CDs that reviewers keep, I guess.
I'm actually a bit sad that the EFF won on this case. Because if it hadn't of been overturned, you could label "anything" as no-resale and send it to someone. Like, you know, that giant pile of bricks or the entire output of a nuclear reactor and mail it to the RIAA.
Because, with the policy they were trying to establish precedent for, you could do so, mark it as no-sale and no-disposal, and force them to build warehouses to store the random crap you send them.
I used to work at a music store in my youth and selling promo CDs is what got me through college.
If someone says he and his monkey have nothing to hide, they almost certainly do.
At the retail store I worked at after high school, we got freebies and stuff promoting movies and I was always curious as to what would happen if I tried to ebay the buttons and stuff for some extra money. I never bothered though because of the 'not for resale' message on the freebies. Its great to see someone get a victory about anything against a music company!!
"EFF Wins"
I worked at my high school's radio station. We received tons of promo CD's. Very few of them turned out to be hits. We had stockpiles of CD's nobody wanted. They just piled up for years. We were always worried that the record companies were going to ask for them back, so we had to keep them.
Ultimately, we decided that the record companies weren't going to ask for the really old ones, so we gave away as many as we could, and threw the rest away. It was kinda sad to see all of that waste.
One of our competitors trademarked the term "hypothesis". From now on, we will call them "boneheaded ideas".
There goes promotional copies of CDs that reviewers keep, I guess.
Not if they want a good review. B-)
Bantam Dominique roosters crow a four-note song. Once you've heard it as "Happy BIRTHday" you can't NOT hear it that way
Comment removed based on user account deletion
The bookstore only returns the cover and they agree by contract to take these in lieu of the entire book. If the bookstore sells the books anyway, the publisher should sue them for breach of contract.
If you buy the book it is yours.
LIVE, Love, die
Will this then apply to books who have had their cover torn off and returned to the publisher? Most of those books carry a "if the cover is missing this book cannot be resold" blurb[?]
Probably not. Promo records are spam. The arrangement between the publishers and the booksellers is contractual. Since the arrangement requires disposition of the remainder of the book in a way that keeps its content out of the market it can be argued that marketing the defaced book is conversion (think "stealing it for your own benefit"), making buying and owning it (knowing, from the missing cover, that it's not what the publisher intended) some variation on "possession of stolen property".
But IANAL so that's a guess.
Good catch!
Bantam Dominique roosters crow a four-note song. Once you've heard it as "Happy BIRTHday" you can't NOT hear it that way
- Send unsolicited promotional copies to various parties. But unsolicited merchandise through the mail is presumptively a gift. So the people will then own the promotional copy, and have the right (as this recent ruling affirms) to resell the item. It would be fraudulent to mail things that say "you must pay for this!" or even "you must return this!" (thereby forcing people to pay postage for things they never requested).
- First send out a letter asking the recipient to sign a contract, where they agree that upon receiving the promotional item, they will return it, and agree not to resell or give it to others. This would work, but would be onerous for both parties. In particular, the vast majority of people wouldn't bother with that kind of hassle.
The promoters need to make it easy for the intended recipients to get the promo and to hear it. So I doubt they will use the second option (although I suppose a large company could try to get many outlets to sign a blanket contract that will cover all promos thereafter sent to them). In the end, they will just have to accept the fact that the promotional material can be transferred, bought, and sold, like anything else.There, fixed that Subject for ya.
I finally updated my sig, but now it's lame.
They already do. I have a number of promotional CDs which explicitly state "This CD remains the property of MUSICCOMPANY and we can request that you return it at any time." In practical terms, they never actually do ask for it back, but presumably it gives them the option.
You obviously didn't check Wikipedia. The Tim Russert article had news of his death thirty minutes before you posted.
http://www.nypost.com/seven/06132008/news/nationalnews/tim_russert_dies_from_apparent_heart_att_115384.htm
Now I know what to do with all my dead monkeys!
- None can love freedom heartily, but good men; the rest love not freedom, but license. -- John Milton
No, they can't; that's the whole point.
If it's unsolicited, it's legally considered a gift, owned by you, and they can't put terms and conditions on your use of it.
They can't tell you not to sell it, they can't tell you to return it, they can't tell you to pay for it if you keep it... they can't tell you how to use it!
I'm all for being able to sell what you have. First sale is important and generally a good thing. This time, the law went the wrong way.
The reason the discs were sent out was not as a gift. It was sent as cross-promotional material -- something that both the sender and the receiver desires. Radio stations play them to attract listeners to ads. It's cross-promotional always. The radio doesn't have to play it, and by all means destroy it if you like. But selling something that's clearly meant for bi-directional corporate benefit is just plain bad for society.
The reason the discs weren't marked with instructions for tehir return is because they were on disposable media. The media being nothing more than a conveyance. And in this world of electronic distribution, there is nothing tangible to be returned.
There needs to be some way to send something to someone without sending it to the world. I don't care what that technique is, just tell me what it is. Some way for me to send my recording to you, without giving you the right to profit from it, or to publicize it.
Otherwise, without such a technique, the world becomes a very different place. Initially better for consumers and worse for businesses, then worse for employees and better for employers then better for businesses and worse for consumers. As is the general cycle of things. Now I'm an employer and a business owner (actually two businesses now). I'll be happy in the long run, but I don't want to suffer through that initial phase.
Get congress to "fix" the law so that they can send promo copies which are not presumed to be gifts.
Yay!
Really, the "contract" isn't as much of a hassle as you make it out to be. All it has to be is a one-liner in any other sort of "sign-up" or agreement saying that you want to sign up for promos but won't sell them.
Information wants to be free.
Entertainment wants to be paid.
You just want to be cheap.
OK, so common sense prevailed and the EFF won. That's great, but what is the significance of this case? Is there actually a big problem with people getting hassled for giving/selling promo CDs, or am I missing some other broader implication as a result of this decision?
We need to replace all current laws with just one law.
"Don't be a fuckwit"
It would work perfectly, I challenge anyone to come up with a criminal offence that wouldn't qualify as being a fuckwit, theft, murder, driving stupidly, blaring your music after midnight, everything from capital offences to misdemeanours are covered easily.
And the best part? Trying to abuse loopholes or shitty legal definitions qualifies as being a fuckwit! So does assigning sentences or penalties not in line with the crime.
Its the perfect system! Theres no flaws in in to exploit since doing so would make you a fuckwit for trying to get around the system!
The law is clear. If you choose to mail something to someone that they did not ask for, it becomes their property. End of discussion. Done. Sending it through the mail, unsolicted makes it a gift.
Whatever idea you had in your head that prompted you to mail it makes no difference to the law. The recepient didn't ask you for it, you sent it anyway for whatever reason. Bing bam boom, it's theirs now. It doesn't matter if they want it or not. It doesn't matter if it's cross-promotional.
There is a way to send something to someone without sending it to the world. You contact them and say "If you agree to my conditions, I will send it to you." Then, if they agree, you send it, if they don't, you can't send it anyway and bind them to your wishes. I can't emphasize how fundamentally important that is... no one can force someone else into a contract.
The EFF won't look like the heroes they are in 100 years. They will look like a glorified joke ... like a historical version of states the obvious man. All their victories are like this one. 'EFF convinces world you cant sue people for receiving gifts you sent them in the mail.' just doesn't sound that heroic does it.
Some way for me to send my recording to you, without giving you the right to profit from it, or to publicize it. In this case, the radio stations are both profiting from and publicizing the music that was given to them.
And your proposal is that the legal system should recognize Indian giving?
In fact, the legal system does recognize a form of Indian giving. But that requires a contract. Which requires the consent of both parties. Which can't possibly occur via a one-way transmission of goods. So, thankfully, giving something unsolicited to someone else is still considered a gift, and by the most basic logic, always will be.
"I assumed blithely that there were no elves out there in the darkness"
Is a contract even necessary? Merely requesting a promotional CD means that it is no longer being sent "unsolicited." Therefore, you as the promoter are not entitled to protection under the Postal Reorganization Act. Further, a reasonable legal notice attached stating that no transfer of ownership is taking place would likely be an enforceable contract in and of itself.
--Randall
That was easy. Where's my prize?
Oh, you mean to send something to someone *unsolicited* and just by the fact of receiving it make them liable for damages for something?
Oh, no thanks.
But remember, those who get air play are those who had their promo heard. Those who had their promo herd, are those who sent it out unsolicited. If they ask for any level of commitment they will lose business to those who don't ask. Thus everyone in the business would like to have the thing singed, but would like everyone else to be doing it before they come on board. It ain't going to happen.
vi +
These are subscription services. Promo Only and ERG Music Traxx are a couple that pop into my head right now. Radio Stations and mobile DJs pay a subscription fee to get these CDs that have all the current music on them rather than having to buy entire CDs for just a single track or two.
Maybe I can put it into geek terms, well almost geek since it involves Microsoft. If you pay a yearly subscription fee to MSDN, they send you CDs with the latest versions of their software. Everything from operating systems to development libraries. These CDs are clearly marked, not for resale.
Now with this court case, one of two things could happen, Promo Only, ERG Music Traxx and similar services increase their fees to keep people from profiting from selling the individual CDs or such services cease doing business. The same thing could end up happening for MSDN and other such services as well.
I read Slashdot for the headlines, because the headlines, unlike the articles, are usually original and never duplicated
> I could send an RIAA lawyer a cd with "Receiving this cd means that I now own your soul.
"RIAA lawyer's soul", eh? I guess you're looking for something to put on the shelf next to the "square circle", "military intelligence", and "Microsoft Works", right?
I'm all for fair use, but I think the judge went a bit too far. After all, the intended purpose of the disks seems pretty clear and promoting disincentives for record labels to distribute music for FREE to radio stations benefits no one except corrupt DJ. Fuck you, Tony.
im gonna put your banners on all my sites and have your children !
Read radical news here
True.
Information wants to be free.
Entertainment wants to be paid.
You just want to be cheap.
Those who believe the Internet is private,
find their privates are on the Internet.
It's a case about an audio CD being resold? Why did the EFF get involved?
Option 3: Send them a one-time-use URL to download a DRMed copy of the album.
UMG has filed a lawsuit against John Does 1-4 over eBay listings reselling promo CDs distributed to radio stations, DJs, and other industry insiders. UMG claims in the suit that the right of first sale does not apply, as the discs were not actually sold and therefore remained UMG's property.
If someone is given some open source software without any expectation of repayment or return (say distribution to a non-coder user), why doesn't first sale apply and allow that person to modify and resale that software without source code distribution restrictions? (after they later learn how to program ...)
It's at Wikileaks:
http://digg.com/business_finance/EFF_caught_in_using_immunity_to_support_trafficking
These days they invite you to listen the record at their place because they are afraid that you distribute your copy of promo-CD over the internet, even if its already "leaked" to internet or they are afraid that it will leak before release from you.
having worked in Radio for some 7 years, it's a small victory for Mr. Augusto, The various music associations (BMI, Universal, Cutters, broadcast gold, etc.)
all require a contract with them, part of which states that these groups will send your station promotional material from time to time for use on air.
With this case having been won, now all of these companies are going to start pumping out new contracts that I have no doubt will have some clause about what the stations can and can not do with this material. I can tell you first hand some of the companies (Cutter comedy tracks) actually give you a return label or proof of destruction form, And the contract states a date range your allowed to Air the material within, after the last air date you have to return the CD or master tape or destroy it and fax back the signed form.
I applaud the precedent that the EFF has set (and yes I donate to them when I can) but look at the over all picture not only will the station Mr. Augusto works from be dropped from the mailing lists and will no longer get early release material but it's made everything a lot more complicated for the rest of us in the business.
And, absent registered/certified mail, "You can prove I received what ...?"
Thank you for the courteous, intelligent and insightful explanation. That certainly makes sense, and I appreciate your taking the time to explain it so thoroughly.
I appreciate your taking the time to explain.
Regarding the exclusive right of public performance, that is superceded by the ASCAP, BMI, and SESAC blanket license agreements. In the case of a digital broadcast (such as satellite radio, cable radio, or Internet radio), the Section 114 and Section 112 statutory licenses also take precedence.
Such a notice applies to only the unauthorized public performance. It is essentially no different than stating "All Rights Reserved," which covers the gamut of the copyright in the sound recording and/or musical work. Radio stations and nightclubs, however, are authorized to publicly perform musical works, and hence are provided the exemption.
--Randall