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."
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
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.
Maybe I'm just overly hopeful, but it certainly seems to me that people in the legal system are begining to see just how ridiculous many of these 'flimsy' shrinkwrap/EULA/itsnotyoursitsreallyalicense type arguements are.
Wish in one hand...and you'll soon be washing them both
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
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.
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
Get congress to "fix" the law so that they can send promo copies which are not presumed to be gifts.
Yay!
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?
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.
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.
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.
I didn't mean a technical solution, I meant a legal one. Something as simple as a well-publicized phrase that simply entitles the receiver to use it but not sell it. I'm thinking of consumer-level comman legal contracts in the same way that the GPL's brought common legal contracts to software development.
As for "it's the world we live in now" I disagree. We've only had there DRM problems for a few years, we're not locked into this situation yet. I don't want to see us wind up in exactly the situation that you're describing, but as a long-term problem.
In general, I think that's the solution to 95% of consumer-level legal problems -- to simply have a collection of well-publicized legal agreements, also for small business-to-business relationships, with very standard phrases, interests, causes, and solutions. Along with that comes very standard ways of enforcing them. Basically expanding the concepts of "small claims court" into something that covers basic contract agreements.
Yes, but in the legal world, it's easy to convolute things to the point where you need Captain Obvious to point things out. I know for a fact that I've overcomplicated things by thinking too hard, when the answer was right in front of me. And the real issue isn't that their victories are so blindingly obvious, it's that if they lost these issues, we'd live in a world where things were incredibly obscure and difficult to navigate. A spade is a spade, and we need to call it that, especially when there are people calling it a "manual earth removal and placement device". Plugging up these loopholes makes it so that the law can be obvious, especially in the places it needs to be.
Cynical Idealist
What an eloquent way to say "FR!ST P0$T!!1!!11!" while remaining on-topic. Well played, sir.
I'll be your candy shop of infinite deliciousity if you'll be my discotheque of endless rump-shaking.
Not really. The music industry has pretty much tested, since its very inception, the outer bounds of what the legal system would allow.
The whole idea of "licensing" or "leasing" music rather than selling it isn't a new one. The Victrola Company attempted all sorts of shenanigans with its records, including invalidating your right to play the record if you bought it for less than $1 (that's from 1906!). They attempted to back this up not only with contract law, but with patents as well. Their attempts at price-fixing via this method, both on records but even more significantly on machines, went all the way to the Supreme Court ("STRAUS v. VICTOR TALKING MACH. CO. , 243 U.S. 490").
So this is really nothing new at all. It's just the music industry playing screw-the-consumer in the same manner they have always done.
"Ladies and gentlemen, my killbot features Lotus Notes and a machine gun. It is the finest available."
Those who believe the Internet is private,
find their privates are on the Internet.
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