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."
The EFF sure taught the industry a lesson! (Score:4, Insightful)
Go go EFF!
Re:The EFF sure taught the industry a lesson! (Score:5, Interesting)
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:5, Informative)
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.
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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:The EFF sure taught the industry a lesson! (Score:5, Funny)
Re:The EFF sure taught the industry a lesson! (Score:5, Informative)
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 [cornell.edu], 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)
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I remember the old "get 5 free, if you buy 300 more for grossly inflated prices" deal, and I think that those are legal, since you sign a contract beforehand. Scientific American has adds for a scheme like that in their mag, for the "scientific book club" or such, so its still legal.
It would be applicable if they send you a CD, and then told you need to buy 10 more, or pay for it. Unsolicited, of course.
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Requiring me to properly dispose of something I received in the mail, unordered, is also not something that a sender can do.
For that matter, requiring people to do anything at all, ever, is pretty much a non-starter unless you're collecting taxes, serving a warrant, or issuing a summons.
It costs me money to get rid of trash, and it takes time for me to throw it away. (Yes, yes. Not very bloody much money, and not very much time. But an infinite multiple of zero, nonetheless.)
Imagine, if you will: S
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I've listened to several of these indie bands, even gotten a lot of their stuff from waffles, but all in all it just doesn't seem up to par with most of the other music i enjoy (stones, zep, floyd, etc). The production values don't seem to be as good, and in general just not my style.
Yeah - there are independent acts with bad production values.
However - to play devil's advocate, there are plenty of RIAA-affiliated acts that sound like their album was produced inside of a septic tank. The loudness war has really taken its toll on the quality of modern recordings. (In order to compete with each other for attention, they often compress the heck out of the audio, robbing it of its dynamics.)
Furthermore, there are a lot of acts [either independent or on non-RIAA labels] that are talented an
If I were to donate to any tech foundation (Score:5, 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:If I were to donate to any tech foundation (Score:4, Informative)
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Yes, I know this from personal experience from a few years back.
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One time they sent me a bumper sticker I was really proud to wear (on my car); but the last time I donated, they did not.
I need a new bumper sticker for my new (well, used) car.
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Re:If I were to donate to any tech foundation (Score:5, Insightful)
Re:If I were to donate to any tech foundation (Score:5, Informative)
As an aside, if there are any digital rights issues in your country that you think should get wider coverage, or need advice on how to tackle, or technical and logistical support, get in touch with me, danny@eff.org or mail info@eff.org. It really helps us to get feedback and news from our supporters.
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As an aside, I notice the
Re:If I were to donate to any tech foundation (Score:5, Informative)
Profit and Loss Standard - January through December, 2006
Ordinary Income/Expense
Income
Corporation Contributions $215,229.72
Event Income 57,630.10
Foundation Grants 466,858.36
Individual Major Contributions 1,423,444.26
Interest Income 18,161.86
Litigation 430,545.00
Matching Gifts 35,426.34
Membership Income 882,710.89
Combined Federal Campaign (CFC) 10,354.40
Minor Donations 9,739.50
Honorarium/Awards 1,300.00
Fiscal Sponsorship 156,225.89
Miscellaneous Income 19.50
Total Income 3,707,645.82
Expense
Salaries & Benefits 1,865,393.06
Building Expenses 192,684.57
Corporate Insurance 35,645.71
Office Expenses 153,142.46
Membership Expenses 48,258.50
Court Filing and Fees 20,557.99
Bank & Merchant Fees 31,236.87
Consultants 82,622.52
Staff & Board Enrichment 24,150.06
Travel & Entertainment 66,092.38
EFF Events 23,216.94
Grassroots Campaigning 41,868.30
Taxes 410.00
Fiscal Sponsorship Expense 189,899.23
Total Expense 2,775,178.59
Net Ordinary Income $932,467.23
Other Income/Expense
Other Income
Unrealized Gain or Loss 108,618.85
Total Other Income 108,618.85
Net Other Income 108,618.85
Net Income $1,041,086.08
2006 was a particularly good fundraising year for us. In early 2007, we
transferred $1 million of our 2006 net income into EFF's Endowment Fund
for Digital Civil Liberties, to ensure the long term sustainability of
the organization. We do not anticipate having a similar surplus of
operating funds in 2007.
And books? (Score:5, Interesting)
Re:And books? (Score:5, Informative)
What allows the booksellers to rip and return the cover, destruct the rest of the book and get a refund is a CONTRACT they entered into with the publisher, in this contract they promised to destruct books whose cover they return. Thus if they return covers yet fail to destruct the books they're in violation of contracts, and will be held responsible for any damages arising from that.
Re:And books? (Score:4, Informative)
HTH
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But, here's the distinction: Suppose the bookseller breaches the contract and sells the books to somebody else ("Bob") without covers. And then when Bob tries to sell the book on ebay, the publisher comes after him. We know that the publisher has a breach-of-contract claim against the original bookseller. Does he also have a copyright infringement claim against Bob for violating the distrib
These CDs aren't unsolicitied. (Score:2)
Maybe I can put it into geek terms, well almost geek since it involves Microsoft. If you pay a yearly subscription fee to MSDN, they send you CDs with the latest versions of their software. Everything from operating syst
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.
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IIRC, part of the decision was that the "contract" that UMG alleged prevented the resale was not valid.
As far as I can tell, at least, the return clause for booksellers is more traditional and convenient than anything else. I imagine that if booksellers had another venue for recouping the wholesale price of unsold books, they could just as well go that route. Small businesses, for example, are just as able to put the book/unsold merchandise up on eBay as any other action.
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Probably not. (Score:2)
Probably not. Promo records are spam. The arrangement between the publishers and the booksellers is contractual. Since the arrangement requires disposition of the remainder of the book in a way that keeps its content out of the market it can be argued that marketing the defaced book is conversion (think "stealing it for you
Re:And books? (Score:5, Informative)
Yes and No. Mostly No.
Think about how that process works. You buy up a bunch of inventory. You then don't sell it and want to return it to get your money back. The publisher could just say screw you, you bought it, its your problem to sell. (And that's the case with a lot of books... and why there are those bins with hard covers for $1.00 in them.)
But some publishers with some titles for a number of reasons, give you the option to return the book for full or partial credit if it doesn't sell within a time frame. Of course, they don't really want the book back and it costs a bundle to ship heavy books around so instead they simply require you to destroy the book and they compensate you. The whole 'tear off and send in the covers' is just part of the 'auditing and accounting processes' to ensure disreputable dealers don't just claim they destroyed them and ask for piles of money back while selling the books. Plus by tearing the covers off and having the disclaimer in the book it renders the books nearly worthless even if they aren't destroyed, because a) the cover is missing, and b) consumers know that someone got paid to destroy these books and now is trying to sell them.
The book seller was essentially paid to destroy and discard them, if they didn't destroy them then they are in violation of their contract and liable to be sued etc. Its no different than you contract a company to come to your office to shred your documents, and then instead they take your documents and sell them on ebay, they are in serious violation of the contract. Same deal here.
So in most cases if you came into possession of such a book it would mean that the contract was not fulfilled and the publisher could seek damages from the book seller that was supposed to have destroyed it. If you worked at a book store and just kept copies for yourself, it gets messy, those copies could legally amount to stolen, and reselling them would amount to selling stolen property. If your being paid to destroy or discard something and you keep it, the question of whether its theft or not is complicated. Normally it would be ok... like if your boss said throw that printer away and you took it home instead. But if your boss said destroy this book of customer contact and account information and you took it home instead... that would be theft.
But here the illegality has really nothing to do with the cover being missing, or the disclaimer on the book, and everything to do with the fact that the publisher paid for these books to be destroyed and they weren't.
HOWEVER. ALL THAT SAID.
If you somehow legally came into possession of a book with its cover ripped off, you can sell it. You are not bound by any contract. Nor are you bound by the disclaimer on the first page about the missing cover.
If you bought a book and then tore its cover off for example you'd still be able to sell it without question. Or if you found it on the street that would be fine.
If you pulled it out of a dumpster that would really depend on the circumstances. It would probably be legal in most cases of simple dumpster diving... but illegal theft if it were a more systematic enterprise, especially if you were involved or related to the bookstore putting them there.
Please return this post ... or I'll sue you! (Score:3, Funny)
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.
Re:Please return this post ... or I'll sue you! (Score:4, Funny)
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Re:Please return this post ... or I'll sue you! (Score:5, Informative)
- We'd use the CDs for in-store play, thus generating customer interest.
- Word of mouth advertising from our employees.
- Often, in exchange for free copies of the CDs, we'd let a label representative make a small in-store display of that or other recent/new/upcoming releases from that label.
I left that job with thousands of discs, which I sold at used stores for $1-$4 a piece -- nice severance package, if you can get it.It's always struck me as funny that record companies get pissed about free music being available online, when they happily send music stores multiple free copies of nearly every new CD that comes out. I've often wondered how many tens of thousands of free copies of each major release get sent out. (I understand the logic -- quid pro quo and all that -- but it's still a strange practice.)
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Because they need someone to pay for all the free copies they send to the stores. It's not that strange really, it gets put in the 'marketing' budget, probably costs more money than they give to the actual artists (if it isnt just outright deducted from the artists part of the revenue), and then they can whine about how expensive it is to produce and distribute music.
Of course, this kind of waste only make
Already happens. (Score:2, Informative)
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They can't. There's established law that unsolicited deliveries of items are legally gifts and don't need to be paid for or returned.
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Credit card companies would like to subscribe to your newsletter.
In soviet union, CD returns YOU!
Also, what about those government rebate checks ... dis you ask for them? No, but there are certain terms of use - you can't, for example, change the amount by adding a bunch of zeros before
So, they're gonna start asking for the discs back (Score:2)
Re:So, they're gonna start asking for the discs ba (Score:4, Insightful)
Not if they want a good review. B-)
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you're forgetting option 3, of course (Score:3, Interesting)
Yay!
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Really, the "contract" isn't as much of a hassle as you make it out to be. All it has to be is a one-liner in any other sort of "sign-up" or agreement saying that you want to sign up for promos but won't sell them.
But remember, those who get air play are those who had their promo heard. Those who had their promo herd, are those who sent it out unsolicited. If they ask for any level of commitment they will lose business to those who don't ask. Thus everyone in the business would like to have the thing singed, but would like everyone else to be doing it before they come on board. It ain't going to happen.
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Aww the EFF Won? (Score:5, Funny)
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.
Re:Aww the EFF Won? (Score:5, Funny)
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.
2) I'd be arrested - After plundering every Goodwill dropoff area (a.k.a. 'Round back') for weeks on end for used underwear and rugs that have seen more cat urine than most litter boxes.
3) The ASPCA would track me down - After stealing several monkeys, which I would train to fill buckets full of monkey semen to send to the offices of the lawyers for the RIAA. Imagine hundreds of barrels of monkey semen, all no-resale and no-disposal. Think about it.
I am.
And I need a bucket.
Re:Aww the EFF Won? (Score:4, Insightful)
Why would you be shipping them out to California? The RIAA is located in DC.
Finally! (Score:5, Funny)
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Since they have not asked for it, you can still send all of those things to the RIAA as a gift.
Good news (Score:4, Informative)
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Did you work in Hoboken by any chance?
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The only downside is that now CDDB doesn't recognize most of them
What do you do with them? (Score:3, Informative)
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.
Comment removed (Score:5, Funny)
Re:What? (Score:5, Funny)
Significance of this case? (Score:3, Informative)
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This decision affirms a principle that most of us would consider self-evident: if you give something away, you can no longer claim to own it.
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Nevertheless, there are some broader, less obvious implications. Besides the illegality of sending someone something in the mail and then demanding it back, it can be seen as supporting the first-sale doctrine. Some also see it as a step towards the eventual invalidation of shrink-wrap licenses, but I think it's a bit early and far-removed to take it tha
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That's exactly why this decision is an important one. Content owners want to shrink the first-sale exemption through one-way "licensing" schemes like the one struck down here. They want the right to distribute their works as they see fit but not relinquish control over the copies as the law requires.
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it can be seen as supporting the first-sale doctrine.
No, it can't. There's only a tangential relationship to DFS here, which itself is fairly uncontroversial. The only issue is the unsolicited mailing-out of discs and then expecting someone to honor a restriction you placed on a note attached to it.
This has nothing to do with something a consumer initiates by an intentional purchase, nor does it have any bearing on "not for resale" labeling in solicited purchases or acquisitions. It really is just a case reminding people that conditional gifts have to be
That's going a bit to far (Score:2)
EFF !!! (Score:2)
Re:Sheesh. (Score:4, Interesting)
Wish in one hand...and you'll soon be washing them both
Re:Sheesh. (Score:5, Informative)
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 [natch.net] (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 [findlaw.com] ("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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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.
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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 th
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http://en.wikipedia.org/wiki/Non-disclosure_agreement [wikipedia.org]
However, you can't mail something to someone with a shrink-wrapped NDA attached, and expect it to have any force. Separate law has already established that unsolicited materials received in the mail are gifts, and that gifts have the first-sale doctrine attached and therefore can be resold. To make the NDA valid, the parties would need to enter into the agreement before the shipments
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However, I love your point about paying to take your garbage away, that hadn't crossed my mind -- I don't have to here, although that's not entirely true because there is a cap after which I would have to pay. Either way, I've responded elsewhere -- like having that phrase be a GPL-style standardized contract ac
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Exactly Wrong (Score:4, Informative)
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.
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I imagine the law was built in a time where you spent months or years developing something, a few days with the agreement, and a few days with t
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?
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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
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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.
It's called a contract (which has good legal foundation) or DRM (which is easily breakable).
The fact of the matter is, in this case, the samples were sent unsolicited and as such, were gifts. That's old, established precedent.
Even if you sell me something, I can resell it. That's it. If you don't like it, don't sell me anything. It is often the case that I can't copy it, retain the original, and sell the copy (or vice versa), but I *can* sell the original so long as I don't retain a copy. Doctrine
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I don't know what the solution should be, but I'm thinking something along the lines of GPL-style standardized contracts that can be accepted or denied upon delivery (i.e. with the courier) so that the legal process doesn't
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You might have a point if there was an agreement between the two parties. However, in this case the CDs were unsolicited.
The fact that the recipient can potentially benefit from receiving them is irrelevant. They weren't asked for, there was no agreement between the parties, and therefore they were an unsolicited gift. The recipient can do as they please with them.
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In lieu of a contract, anything you send someone unsolicited is a gift.
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I don't care what that technique is, just tell me what it is
It is called "asking the recipient to confirm that they agree to the terms before mailing out the discs".
That's all it takes: The moment the recipient have agreed to abide by certain terms in order to receive the disc, then the sender would have a legal claim if they try to resell it.
To see why this was the RIGHT ruling, consider this: If a sender could enter you into a contract just by sending you an item, people would start just shipping you random items with a "contract" requiring you to purchase
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-- a legal system that can't differentiate between "don't sell this" and "pay me" is defunct
-- it's been hundreds of years since the law was designed
-- it takes two days to record my music, and two hours to ship it to you, but it takes weeks to get that contract negotiated
-- maybe GPL-style standardized agreements that can be accepted or declined upon delivery would be a decent idea
-- I don't kno
Of course there is (Score:2)
That was easy. Where's my prize?
Oh, you mean to send something to someone *unsolicited* and just by the fact of receiving it make them liable for damages for something?
Oh, no thanks.
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Like I've been stating to everyone else, I'm not saying that first sale is a bad thing. I'm saying that we need a way -- like standardized GPL-style agreements upon USPS delivery -- to make the legal agreement proportional in time and effort to the rest of the process. If I take two days to record my music, and ten s
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My problem, as I've been re-iterating to every reply here, is that the legal contract you mention takes weeks to negotiate. But it only took me two days to record my song, and two hours to courier it to the station. The legal system -- in this case propably desig
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