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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."
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?
Let them try. If they write that on that label, they will no doubt have to prove they actually recover the CDs they send, and it's not just there to get around the other judgement. And if the CD is sent unsolicited, then they will have to pay for the return fee or expose themselves to extortion lawsuits or something. Let them try to deal with that logistic nightmare.
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.
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.
And if the CD is sent unsolicited, then they will have to pay for the return fee or expose themselves to extortion lawsuits or something.
As I understand it: If it's unsolicited (and not the result of a shipping error or a fraudulent order by some third party) there is no obligation to return it, no matter what is printed on it.
Bantam Dominique roosters crow a four-note song. Once you've heard it as "Happy BIRTHday" you can't NOT hear it that way
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.)
Kid-proof tablet..
I like it!
But actually, it doesn't have a fancy latin name: it's just called "mailing of unordered merchandise". The federal statute is 39 U.S.C. 3009, and it was cited and analyzed at length in the judge's opinion (linked to from the EFF press release). The statute is designed to combat exactly this sort of scam: a company sends you something you didn't ask for, then imposes conditions on your ownership of it (like saying you can't sell it, or saying you have to pay for it).
Joe Gratz
(attorney for the defendant in UMG v. Augusto, but speaking here only for himself)
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.
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