Labels Get Dropped For Another 8-Count

http://www.eff.org/press/archives/2008/06/11

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Judge Shoots Down Universal's Bogus Infringement Allegations

Ruling Affirms Right to Resell Promo CDs

San Francisco - A federal judge has shot down bogus copyright infringement allegations from Universal Music Group (UMG), affirming an eBay seller's right to resell promotional CDs that he buys from secondhand stores.

Troy Augusto, represented by the Electronic Frontier Foundation (EFF) and law firm Keker & Van Nest, was sued by UMG last year in the United States District Court for the Central District of California for 26 auction listings involving promo CDs. At issue was whether the "promotional use only, not for sale" labels on those CDs could trump Augusto's right to resell materials that he owns, guaranteed by copyright law's "first sale" doctrine.

In dismissing UMG's lawsuit late Tuesday, U.S. District Court Judge S. James Otero ruled that the promo CDs are gifts distributed by UMG, as they are mailed free and unsolicited to thousands of people without any expectation or intention of their return. The first sale doctrine says that once the copyright owner sells or gives away a copy of a CD, DVD, or book, the recipient is entitled to resell that copy without further permission.

"This is a very important ruling for consumers, and not just those who buy or sell used CDs," said EFF Staff Attorney Corynne McSherry. "The right of first sale also protects libraries, used bookstores, and businesses that rent movies and videogames. This ruling affirms and protects the traditional balance between the rights of copyright owners and the rights of the public."

"It was clear to the court that these CDs were the property of Mr. Augusto, and therefore he had the right to resell them," said Joseph C. Gratz, attorney with Keker & Van Nest. "Copyright holders can't strip consumers of their first sale rights just by sticking a 'Not for Sale' label on a CD."

Mr. Augusto's victory comes almost one hundred years to the day after the United States Supreme Court's June 1, 1908 decision in Bobbs-Merrill Co. v. Straus, 210 U.S. 339 (1908), established the first sale doctrine as a central part of American copyright law.

EFF has long fought efforts to override the first sale doctrine, arguing in 2004 that Lexmark should not be permitted to use a "label license" to prohibit the resale of laser printer toner cartridges.

For the full order:
http://www.eff.org/files/filenode/umg_v_augusto/LA07CV03106SJO-O.pdf

For more analysis:
http://www.eff.org/deeplinks/2008/06/liberation-day-promo-cds-victory-um...

I love it. Getting dipped in honey and buried in an anthill wouldn't be enough for these cretins.

Tall Tyrion wrote:

I love it. Getting dipped in honey and buried in an anthill wouldn't be enough for these cretins.

This was a big case. I'm glad he won. I've said for ages that I am not under any contract when I receive a promo. I mean, I receive promos almost daily. Just today I got a CD by a band called Mignight To Twelve. I didn't request it. I'm sure as hell not going to review it. In fact, the company that sent it—Big Media Machine—is one that got my address from some other promotional company, since I've never worked with them before. I'm under contract now because someone sent me unsolicited material? Pffft!

Ten years ago, however, this guy would have been brutally turded, and UMG would have won.

Actually, I'm no lawyer, but it's my understanding that any unsolicited material sent to you in the mail becomes your exclusive property. IE, I can't send you something and then "bill" you for it, you have to order it before you become legally responsible to pay. I don't see why that would not apply to all promos.

Tall Tyrion wrote:

Actually, I'm no lawyer, but it's my understanding that any unsolicited material sent to you in the mail becomes your exclusive property. IE, I can't send you something and then "bill" you for it, you have to order it before you become legally responsible to pay. I don't see why that would not apply to all promos.

The thing is, the labels have a ton of money, always have. So they invented "laws." I mean, according to a label, if I buy a promo CD at a used store, they still own it. I don't. It's just nonsense, and the law was always on our side. But we're poor little peons.

Labels tried to sue used shops years ago, just to try and steal some of their profit, claiming they still held ownership on what the used shop sold. Complete nonsense.

Quote :

Actually, I'm no lawyer, but it's my understanding that any unsolicited material sent to you in the mail becomes your exclusive property. IE, I can't send you something and then "bill" you for it, you have to order it before you become legally responsible to pay. I don't see why that would not apply to all promos.

This is my understanding as well.

Score one for the little guy!!

I have tons of promo CDs in my collection too. I always find the legal mumbo-jumbo about how they're "the property of the record company" and "must be returned on demand" very interesting. Has a label ever demanded the return of a promo CD?

Is there a statute of limitations on such things, or do they remain property of the record company forever? I mean, is someone from Spitfire Records gonna come knocking on my door someday and ask me to return the promotional copy of Crimson Glory's ASTRONOMICA that I bought at a used store ten years ago? Cuz if they do, they can have it when they pry it from my cold dead fingers!

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Troy Augusto, represented by the Electronic Frontier Foundation (EFF) and law firm Keker & Van Nest, was sued by UMG last year in the United States District Court for the Central District of California for 26 auction listings involving promo CDs.

I'm glad he won and hurray for the little guy, but I'm wondering if there is more to the story on his end. I question why UMG would go after a guy selling 26 cd's. Seems like a big hassle for such a little fish. I'd think something like that could slip under their radar. What did this Troy Augusto do to get under the skin of UMG and their lawyers?

I've actually owned only one promo cd ever, and I just traded it last Tuesday. Where do you guys find all of them?

Eyesore, do you work at a cd store or a radio station?

get_the_firehouse wrote:

I've actually owned only one promo cd ever, and I just traded it last Tuesday. Where do you guys find all of them?

Eyesore, do you work at a cd store or a radio station?

I'm not Eyesore, but I can tell you that I've bought them at used shops and I get them through my job. I work at a sporting arena and the record companies send them to us to play and/or to give away as prizes to the fans. I know a guy that used to work at Rhino Records and he'd hook us up all the time with freebies. Too bad for me that he's moved on to another job.

MetalGuy71 wrote:

get_the_firehouse wrote:

I've actually owned only one promo cd ever, and I just traded it last Tuesday. Where do you guys find all of them?

Eyesore, do you work at a cd store or a radio station?

I'm not Eyesore

Oops, sorry man...brain fart.

get_the_firehouse wrote:

MetalGuy71 wrote:

get_the_firehouse wrote:

I've actually owned only one promo cd ever, and I just traded it last Tuesday. Where do you guys find all of them?

Eyesore, do you work at a cd store or a radio station?

I'm not Eyesore

Oops, sorry man...brain fart.

Sorry for what? You asked Eyesore a question and I jumped in to give you my 2 cents. Nothing to apologize for. In fact, I should be the one who's sorry. But I'm not.

Fat Freddy wrote:

Score one for the little guy!!

I have tons of promo CDs in my collection too. I always find the legal mumbo-jumbo about how they're "the property of the record company" and "must be returned on demand" very interesting. Has a label ever demanded the return of a promo CD?

I know of two instances, both involving Tori Amos albums. In 1994, labels sent out promos of Under The Pink with unnapproved artwork. The record company demanded the CDs back, and apparently got most of them, which were then destroyed. Find an original, you can make a lot of cash.

Another time, for her Scarlet's Walk album, the label tried to get "smart" and sent out portable CD players with the CD in them. They were glued shut, headphones and all. Reviewers were supposed to listen, review, and then mail the entire thing back. The album still leaked. Haha.

This last one isn't quite the same, as there was a bit more of a "contract" between the two parties. But I doubt there was much in terms of legality behind it all.

MetalGuy71 wrote:

Quote :

Troy Augusto, represented by the Electronic Frontier Foundation (EFF) and law firm Keker & Van Nest, was sued by UMG last year in the United States District Court for the Central District of California for 26 auction listings involving promo CDs.

I'm glad he won and hurray for the little guy, but I'm wondering if there is more to the story on his end. I question why UMG would go after a guy selling 26 cd's. Seems like a big hassle for such a little fish. I'd think something like that could slip under their radar. What did this Troy Augusto do to get under the skin of UMG and their lawyers?

I'm pretty sure he was a big time seller. Search for his name and you can find all the previous stories. I think they just came after him for certain auctions, not all of them.

get_the_firehouse wrote:

I've actually owned only one promo cd ever, and I just traded it last Tuesday. Where do you guys find all of them?

Eyesore, do you work at a cd store or a radio station?

Neither. I find them used all over the place—CD stores, Goodwill stores, pawn shops, AMVET stores, Salvation Armys, eBay, and so on—and I get them in the mail all the time because I've been reviewing albums for like 15 years.

Eyesore wrote:

MetalGuy71 wrote:

Quote :

Troy Augusto, represented by the Electronic Frontier Foundation (EFF) and law firm Keker & Van Nest, was sued by UMG last year in the United States District Court for the Central District of California for 26 auction listings involving promo CDs.

I'm glad he won and hurray for the little guy, but I'm wondering if there is more to the story on his end. I question why UMG would go after a guy selling 26 cd's. Seems like a big hassle for such a little fish. I'd think something like that could slip under their radar. What did this Troy Augusto do to get under the skin of UMG and their lawyers?

I'm pretty sure he was a big time seller. Search for his name and you can find all the previous stories. I think they just came after him for certain auctions, not all of them.

Yea, that's kinda what I was getting at. Not that it makes it any better. I just thought it was curious that they go after a guy selling that little of an amount.