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."

Comments

The EFF sure taught the industry a lesson!

[Anonymous Coward]

I'm sure in the future they will modify their labels to require the return of promo materials.

Go go EFF!

Re:The EFF sure taught the industry a lesson!

[Volante3192]

If the CD is sent unsolicited (through USPS at least) and they try to get it back, they get slammed for mail fraud.

That'll be a trick even for their kettle of lawyers to get out of.

Re:The EFF sure taught the industry a lesson!

[adolf]

Maybe.

Here's the thing:

If [insert RIAA member here] notices that I am a program director at a radio station and sends me a promo CD in the mail with my name on it, then it's mine. I can listen to it, sell it, throw it out, give it away, copy it to my iPod, dupe it for the car stereo, and set it on fire. About the only thing I can't legally do is give a copy to a third party (in violation of copyright law).

Merely receiving something in the mail does not obligate me to do anything that the sender asks. If the sender wants it returned, that's fine; they can want it all week and it'll still never happen.

I mean, imagine it if you will, AC: Suppose I sent you a CD with a label on it which said "Please return to avoid a $250,000 fine, 5 years in jail, or both." Worse, suppose such a CD gets lost in the mail.

Either way, you don't have to do a thing. Were things any other way, we'd see huge numbers of positively ugly scams circulating the USPS, where by inaction alone, simple homeowners would be victimized by their own fucking mail.

(I'm sure that one of Slashdot's resident lawyers can come up with some fancy polysyllabic Latin verbiage to exactly describe this non-problem, but for now you'll all have to grasp this concept without it having any specific title.)

If I were to donate to any tech foundation

[TheDarkener]

it would DEFINITELY be to the EFF. What heroes they are, in today's world!

Re:If I were to donate to any tech foundation

[JustinOpinion]

"If" ??

Why don't you donate?

Seriously, if you live in the US and you care at all about electronic freedom, then you should really do your part by helping the EFF fight the good fight. Discussing/complaining on Slashdot is great and all, but if we ever want things to change, we have to actually do something... or at least fund people who are doing something.

I donate to the EFF yearly. You should consider doing the same.

Re:If I were to donate to any tech foundation

[Excelcia]

Even if you don't live in the US donating is a good idea. Before I joined the Canadian Forces, I made several donations to the EFF. American law, as the recently proposed copyright law here shows, tends to lead to extreme pressure on Canada to "conform to international (read American) standards". If the nastiness can be confined at the source, it has less chance of making it North. Pull the teeth on the American laws before they spread.

Re:So, they're gonna start asking for the discs ba

[Ungrounded Lightning]

There goes promotional copies of CDs that reviewers keep, I guess.

Not if they want a good review. B-)

Re:And books?

[ivan256]

There are two distinct situations here:

  - A bookseller signs a sales contract with terms before books are sent to said bookseller. These terms prohibit sale of books who's covers have been removed for refund. If the contract actually says "made not suitable for resale", the publisher would (successfully) argue that if any customer found the refunded book to have any value, the bookseller didn't sufficiently render it unsuitable for sale.

  - A radio station receives an unsolicited CD in the mail from a record label; the label hopes the radio station will play said CD on the air. The front of the CD says "Not for resale"

In the first case, there is a legally binding contract that the bookseller entered into requiring them to destroy the coverless book or pay the wholesale price of the book to the publisher.

In the second case, under US law the record label has used the US mail to give the CD to the radio station as a gift. The radio station is free to do whatever they want with it, as they are not bound by any contract, no matter what is printed on the outside of the disc.

Re:Aww the EFF Won?

[gEvil (beta)]

1) I'd lose my job - The warehouse would start to question why I always had my Jeep full of boxes and barrels to ship out to CA, and would complain about the shipping charges.

Why would you be shipping them out to California? The RIAA is located in DC.

Re:ok, this one's idiotic for a change

[robo_mojo]

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.

If you had such a technical solution, you could become a multi-billionaire overnight (or killed, perhaps).

But such a technical solution doesn't exist. In any case there must be a strict trust relationship from both sides for it to work. Either that, or rabid lawyers threatening each other into submission.

Otherwise, without such a technique, the world becomes a very different place.

Different, how? It is the world we live in, now. In this world, DRM is inherently a failure, and you can't tell people how to use the CDs you mail them. That's the way it must be.

Re:Exactly Wrong

[dlapine]

That's nice. But what do your troubles with some outdated regulation about individual kiosks have to do with First Sale doctrine?

We're talking about the sale of items that don't require inspection.

We're talking about the sale of items that require the protection of copyright, as they are trival to copy, and the value of the item lies in it's wide distribution.

We're talking about items that do have a specific time value on that distribution, unlike your kiosks, which require a significant amount of time to fabric and distribute.

We're talking about items that have not been ordered by the receipient.

In short, your example here isn't relevant to the discussion. Do you have a better one?

Now, the usefulness of being to send out an advance copy of a book, a cd, a press release or something similar with the expectation that the item will not be further distributed is a subject which might be worthy of discussion. I would submit to you that such usefulness is of relative little use to the general population, and as such, is not worthy of any new laws or regulation. I might suggest that those entities which would find value in such restrictions prepare contracts in advance with parties that would receive these items so that the owners' current copyrights are upheld.

I find no value in suggestions that the public good is enhanced by automatic restrictions on redistribution. Can you provide an example or a case in which the public good is better served by such changes? If not, then why suggest that the court has made a mistake in this court?