EFF Wins Promo CD Resale Case 252
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."
Sheesh. (Score:1, Insightful)
The EFF sure taught the industry a lesson! (Score:4, Insightful)
Go go EFF!
If I were to donate to any tech foundation (Score:5, Insightful)
Re:The EFF sure taught the industry a lesson! (Score:5, Insightful)
That'll be a trick even for their kettle of lawyers to get out of.
Re:The EFF sure taught the industry a lesson! (Score:1, Insightful)
Re:If I were to donate to any tech foundation (Score:5, Insightful)
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 [eff.org].
Re:So, they're gonna start asking for the discs ba (Score:4, Insightful)
Not if they want a good review. B-)
Re:The EFF sure taught the industry a lesson! (Score:5, Insightful)
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.)
Re:And books? (Score:5, Insightful)
- 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? (Score:4, Insightful)
Why would you be shipping them out to California? The RIAA is located in DC.
Re:ok, this one's idiotic for a change (Score:4, Insightful)
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.
Re:If I were to donate to any tech foundation (Score:5, Insightful)
Re:ok, this one's idiotic for a change (Score:1, Insightful)
The reason the discs were sent out is irrelevant. The means in which they were sent is what matters; they were unsolicited and sent via USPS. There are clear cut laws that state sending items in this manner are presumptive gifts. If this is something that both parties truly desire then the sender should have an opt-in method of some form that states the terms and conditions related to receipt of the discs. Allowing anyone to send something to another party and force them into contractual terms without prior consent is 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.
It is not the responsibilty of the recipient of unsolicited materials to divine the intentions of the sender for items regardless of the media they are transported on. Also, the labeling on the disc does not matter, as it is superceded by being a presumptive gift.
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.
That is why we have contracts and solicitation. If you want to send something to someone and define terms of how they will use said item, you need to contact them before hand and enter into an agreement. Or present an option for people to opt-in to the things you wish to send so that they agree to your terms before you send it to them. Otherwise I could, theoretically, send you a CD that has labeling that states by receiving this you are required to pay me $1000.00 US for reading the label.
Re:The EFF in 100 years (Score:3, Insightful)
Re:Exactly Wrong (Score:4, Insightful)
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?
Re:Exactly Wrong (Score:3, Insightful)
i.e. not requiring a team of lawyers to be involved before I can talk to you.
That's called spam.
You are completely ignoring the fact that all communications have costs for both the sender and the recipient. The current status quo is that a sender has to verify with a low overhead communication before they send a high overhead communication. This appears to be an appropriate balance. You want to increase costs for a recipient doing nothing more than minding their own business.
Sorry, but f*k you. You are being just another marketing parasite.
In your world it would be worthwhile for your "great billboard designer" could spam their content to ten thousand "Mazda"'s. The overhead for the designer is low, but that's only because he's managed to transfer most of his costs to the recipients. All unsolicited mass marketing does that; spam is just an extreme example.
Try to get your head around the fact that it is possible to have too much unsolicited communication, as well as too little, before you suggest any more harebrained, parasitic schemes.
Most unsolicited mass marketers really are parasites; it's no accident that they're almost always selling crappy products (good products sell themselves) and they rate very low on respect surveys (because all of the time and attention they've stolen with no recourse from others).
---
Marketing talk is not just cheap, it has negative value. Free speech can be compromised just as much by too much noise as too little signal.
Re:ok, this one's idiotic for a change (Score:1, Insightful)
You can't use it in your own ads, because that would mean you are making copies of the brochure, and you don't own the copyright on the brochure. You only own the brochure, not the copyright.
You can't sell Dell's logo, because the logo (the trademark, the copyright) does not belong to you, it belongs to Dell.
What you can sell is the unsolicited brochure which came with Dell's logo on it, and you don't owe Dell anything. The brochure belongs to you, because dell sent it to you unsolicited. Note that you cannot sell copies of the brochure, that would be copyright infringement.
You really need to learn about the difference between the owner of the copyright and the owner of a copy. Unless there is a contract between the two of them, the owner of the copyright cannot restrict what the owner of a copy does with their copy.
Instead of telling you what I think, I'll let you make another attempt at reading my replies to others.
Yes, I read them, and you are still missing the fundamental point: the only thing the copyright owner has the right to do is restrict the owner of a copy from making copies. If the copyright owner wants to do something else, they need a contract.
Your idea of standardized contracts is several decades old. Lots of industries have standard contract terms with common boilerplate clauses. The music business has many of these already.
Your GPL quote has no relevance. The GPL gives the owner of a copy ADDITIONAL privileges, ABOVE and BEYOND what the owner of a copy already has, IF THEY AGREE to some terms. If you don't agree with the terms of the GPL, you can still use the copy, because you always have the rights of the owner of a copy, but you DON'T get the ADDITIONAL privileges. Without an additional contract, you only get the default rights.
In the EFF case, the music label wants to TAKE AWAY the rights of the owner of a copy. That requires a contract. Without an additional contract, you only get the default rights.
Re:The EFF sure taught the industry a lesson! (Score:2, Insightful)
Probably not much or it would be possible to DoS a company (or person) by bombarding them with "return this or get sued" mail and putting so much workload on them that they fail to keep up.