Selling promo CDs on eBay is OK
p2pnet news Freedom:- Big 4 label UMG stamps its promo CDs with labels declaring they can’t be resold and in May, it sued Troy Augusto, aka ‘Roast Beast Music,’ for listing 26 promotional discs on eBay.
“At issue is whether the ‘promotional use only, not for resale’ labels on these CDs can trump a consumer’s right to resell copyrighted materials that they own, guaranteed by copyright law’s ‘first sale’ doctrine,” said the EFF at the time, also filing a brief in federal court on Augusto’s behalf.
Now, in what the foundation calls an “important victory for the first sale doctrine,” a US court has ruled selling “promo CDs” on eBay doesn’t infringe copyright,’ writes the EFF’s (Electronic Frontier Foundation) Fred von Lohmann in Deep Links, going on >>>
The court threw out a lawsuit by Universal Music Group (UMG), which had argued that the “promotional use only” labels affixed to these CDs somehow conveyed eternal ownership on UMG, making it illegal to resell the CDs (or even throw them away).
For decades, record labels have mailed out millions of promotional records and CDs to radio stations, music reviewers, DJs, and music industry insiders. Troy Augusto, an eBay seller, finds these “promos” at used record stores, where he buys those that have value as collectibles and resells them on eBay.
After an abortive attempt to use DMCA takedowns to block Augusto’s eBay auctions, UMG ultimately sued him in federal court, claiming that the “promotional use only” labels on the CDs mean that UMG owns them forever and that any resale infringes copyright.
EFF and the San Francisco law firm of Keker & Van Nest took Augusto’s case to fight for the proposition that a copyright owner can’t take away a consumer’s first sale rights just by putting a “promotional use only, not for resale, remains the property of UMG” label on a CD. After all, the first sale doctrine had its origin in a Supreme Court case involving book publisher’s effort to enforce a “may not be sold for less than one dollar” label on a book.
In its ruling, the district court found that the initial recipients of “promo CDs” own them, notwithstanding “not for resale” labels. The court rejected the notion that these labels create a “license,” concluding that the CDs are gifts.
According to the opinion, “UMG gives the Promo CDs to music industry insiders, never to be returned. … Nor does the licensing label require the recipient to provide UMG with any benefit to retain possession.” (The court also found that federal postal laws relating to “unordered merchandise” establish that promo CDs are gifts to their recipients.)
With software vendors, laser printer manufacturers, and patent owners trying to, “strip consumers of their first sale rights with unilateral labels, licenses, and notices, tthe ruling sets an important precedent holding the line against these efforts (and comes one day after the Supreme Court reaffirmed the same principle in the patent context in Quanta v. LG),” says von Lohmann, adding:
“Here’s hoping this ruling is another nail in the coffin of ‘label licenses’ that try to strip consumers of their privileges under copyright law.”
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.Stumble It!
Roast Beast Music – UMG sues man for selling promo CDs, April 8, 2008
Deep Links – Liberation Day for Promo CDs: Victory in UMG v. Augusto, June 12, 2008
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June 17th, 2008 at 4:56 am
Hmmm… we’ve more than doubled the backhanders and *still* we’re losing!
(cry)
Might try threats of violence as the stick next.
June 18th, 2008 at 3:42 am
An absurd legal experiment to hound an individual. A legal guessing game by a lawyer. It goes on all the time and lawyeres love to do it because it is profitable. And the corts love it because it gives work to judges who are also lawyers.
Troy Augusto, the defendant in this case should now sue (if he did not already) for violation of his rights.
These rights are including his right to peace, right to not be extorted, right to make a living and profit and right to sell his properties. He should be the last victim of legal hounding in the courts.
He should also get legal expenses in the current case.
Another nail in the coffin of record companies.
June 19th, 2008 at 6:38 am
Eventually, we’ll see the RIAA suing people who don’t have a shred of music, be it album or file, in their home. All the RIAA will claim they need is to ask defendants if they’ve heard of Britney Spears, and they’ll be guilty if they answer in the affirmative. If there’s no computer or tape recorder, the RIAA will claim that evidence was destroyed. If there was a radio, the RIAA will claim that people outside the house or visitors were “illegally distributed” to. If there’s no album, they’ll claim that the defendant didn’t “lose it”; the defendant “knowingly infringed on copyright” — regardless of whether such an album even existed, a burden of proof the RIAA certainly won’t be carrying.
In short, unless you’re living in the central sector of the Sahara Desert, the RIAA will be knocking on your doors for their ludicrously expensive pocket money.