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Universal Attacks First Sale Doctrine

Posted by Soulskill on Fri Apr 11, 2008 01:13 AM
from the aol-could-be-sitting-on-a-gold-mine dept.
Government The Courts News
I Don't Believe in Imaginary Property writes "In Universal Music Group v. Augusto, UMG is attacking the first sale doctrine. The issue concerns some promotional CDs that were mailed out, and later found their way to eBay. According to UMG, the stickers on the discs claiming that they still own the CD give them a legal right to control what the recipients do with them, and thus, UMG should be able to dictate terms. The EFF has filed an amicus brief countering that claim, saying that because they were sent by US mail, unrequested by the recipient, they are in fact gifts, no matter what the sticker claims. If UMG somehow wins this, I plan to send them CD of copyrighted expletives with a sticker informing them of the contractually required storage location. We discussed a similar issue with e-books a couple weeks ago."
+ -
story

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Submission: Universal Attacks First Sale Doctrine by Anonymous Coward
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museumpeace writes "This community constantly chews on stories like the first sale doctrine and the endless maneuvering of RIAA, MPAA, follies of DMCA and DRM in general. I think of each of those stories as like trying to make sense of a particular earthquake. In the Huffington Post, blogger Jonathan Handel succinctly lays out six tectonic market and technology forces that provide a map for all of this. Sample his point #5, the media is the money: 'Fifth is market forces in the technology industry. Computers, web services, and consumer electronic devices are more valuable when more content is available. In turn, these products make content more usable by providing new distribution channels. Traditional media companies are slow to adopt these new technologies, for fear of cannibalizing revenue...'"
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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."
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  • When would they learn.... (Score:5, Insightful)

    by ArIck (203) on Friday April 11 2008, @01:18AM (#23033282)
    When would they learn that these actions are just harming them in the long run.

    How much money did they 'lose' versus the amount of bad publicity they are getting in the meantime. And let us not forget all the lawyer fees.
    • Well, maybe not. If you think about it, this could be an exciting new revenue model for the labels

      1) Send out promo CDs with "This is our property" stickers on it
      2) Wait until the CDs end up on eBay
      3) Sue.

      Imagine the profits they could make here!

        • Re:when would they learn.... (Score:5, Interesting)

          by grahamm (8844) <gmurray@webwayone.co.uk> on Friday April 11 2008, @05:16AM (#23034240) Homepage
          At least under UK law, if the sender claims to retain ownership then the recipients have the option of requesting the sender to collect the goods (or for small items provide pre-paid postage for their return) and if they do not to levy a storage charge. If after the certain period of time the sender does not arrange the return, then the goods become the property of the recipient.

          • Re:when would they learn.... (Score:5, Interesting)

            by Firethorn (177587) on Friday April 11 2008, @06:10AM (#23034470) Homepage Journal
            US law, at least for goods sent through the USPS*, is even better - if you sent me something unsolicited through the mail, it's mine.

            They can 'arrange' for pickup all they like, I don't have to do a thing. It's my choice as to whether to give it back or not.

            *The USPS is actually part of the Federal Government, it's just self sustaining through the sale of stamps and such.

          • Re:when would they learn.... (Score:4, Informative)

            by Nuskrad (740518) on Friday April 11 2008, @07:40AM (#23034924)
            Actually, UK law says that if it's sent to you unsolicited, it's yours unconditionally from when you receive it, and it's an offence to demand any form of payment for it or to threaten legal action. I think that this only applies if it's sent to an individual though, the law may be different if it's sent to a business. http://www.out-law.com/page-430#Inertia [out-law.com]

          • Re:when would they learn.... (Score:5, Funny)

            by PopeRatzo (965947) * on Friday April 11 2008, @07:11AM (#23034736) Homepage Journal
            There's some sleazy outfit, I can't remember the name, that keeps sending my wife stockings or pantyhose or some other feminine-type accouterments. We never requested any of this stuff. A week later, they start sending requests for payment for the stuff they sent us. As far as I'm concerned, if somebody puts something in my mailbox that I didn't ask for, it's a gift or a free sample.

            We started getting increasingly threatening mail from them demanding payment.

            Finally, I tracked down the "CEO" of this "Company" and beat him to death with one of those little souvenir baseball bats I got at a White Sox game. Then I left his rotting corpse in the parking lot of a local telemarketing company as a warning.

            Oh wait, that was last part was in my dreams.

            The first two paragraphs above are true.

              • Re:when would they learn.... (Score:4, Interesting)

                by jahudabudy (714731) on Friday April 11 2008, @08:40AM (#23035506)
                If my legal-fu is working today, this would seem to imply that Universal's claims that the promotional CDs are not a gift is an admission that they broke whichever statute your link refers to. If these aren't gifts, and Universal isn't a charity, that blurb makes it pretty clear everything else is illegal to send without the recipient's permission.

                • Re:when would they learn.... (Score:5, Interesting)

                  by sumdumass (711423) on Friday April 11 2008, @09:29AM (#23036130) Journal
                  One of the issues of confusion here is that UMG specifically reserves their copyright privileges and rights but aren't asking for payment. This jumps into some gray area because they didn't ask for a payment and aren't asking for one. The effect is something along the lines of me mailing you a letter and a key saying since your lawnmower broke last year, you can use mine on these days but you can't let anyone else use it and you can't attempt to sell it or otherwise dispose of it. If you post my mower on Ebay, then we have issues that this law might not cover.

                  Personally, I am of the thought that it would be a gift, but I can see the logic where even a gift would have limitations.

                • Re:when would they learn.... (Score:4, Insightful)

                  by IndustrialComplex (975015) on Friday April 11 2008, @11:04AM (#23037380)
                  It is interesting when you think about it. The USPS is a part of the government that hasn't grown much beyond its originally intended purpose.

                  It isn't some nebulous agency that was created to serve one purpose, and then through years of changes to the law resulted in increasing powers and/or responsibilities.

                  The result is that over the centuries (was the postal service initiated at the start of the US?) since it had one purpose that didn't really have much whitespace it could expand into, you ended up with a fairly refined government agency. Now that is amazing.

                  As an aside, imagine if instead of the FCC, the USPS was tasked with 'expanding' its role for managing the main method of data transfer in the US as new technology came about. It isn't that far fetched to think that might have come to pass.

  • Seems like the issue is confused (Score:3, Interesting)

    by iluvcapra (782887) on Friday April 11 2008, @01:23AM (#23033300) Homepage

    I don't think this is a First Sale issues, since, clearly, the discs are at no time sold. They send them promotionally to people in the recording, film, and media industries for review, evaluation etc. I get them all the time because some random label hopes I'll tell a director to put in these "hot new tracks" (or not). They got a big sticker on them that says, essentially, "NFR". I don't think they're the property of the label, strictly, but the labels and the media endpoints that consume the NFR discs both benefit from having them. Maybe selling them is de jure legal, but it's really dickish.

    Any developers wanna opine on how they'd feel if some software reviewer at cnet started selling their NFR copies of pre-release software?

    • Re:Seems like the issue is confused (Score:5, Informative)

      by hcmtnbiker (925661) on Friday April 11 2008, @01:44AM (#23033410)
      Actually, it is! First Sale [wikipedia.org] applies to legally obtained work. If I'm allowed to give it away under first sale, then when they 'give' me it, it is mine. It's just like having a License Agreement only after you've already used the service, it's non-binding.

      This is very similar to the M$ vs Zamos case. Where M$ tried to stop Zamos from selling M$ discs which said "not for retail or OEM distribution."

    • Re:Seems like the issue is confused (Score:5, Interesting)

      by evanbd (210358) on Friday April 11 2008, @01:51AM (#23033444)

      Actually, the courts are quite clear on the matter. Labels on books or records sold are not sufficient to remove the right of first sale. If it acts like a sale, it's a sale. There have been attempts to sticker books to prevent resale that have been struck down. Furthermore, gifts count as sales for purposes of the doctrine of first sale, as does any other means of legally acquiring a legally produced copy. Merchandise sent through the mail unsolicited may be treated by the recipient as a gift (there's a long court history for this, mostly motivated by people sending unsolicited products and then billing the recipients). And, even if it wasn't a gift, UMG abandoned the CD under California law, since they gave up possession and their actions clearly indicated they had no intent to regain possession (they don't keep records of who has the CDs, and they have never in the past attempted to reaccquire one). So, whether by gifting or abandonmnent, ownership of the CD was legally transferred in a manner equivalent to a sale, and any sticker on it is insufficient to prevent the doctrine of first sale from taking effect.

      The brief is quite readable, and quite thorough in explaining how UMG are being completely and utterly ridiculous.

      PS, by reading this post you agree to... We've all seen comments like this in regard to EULAs and such; those stickers are no less ridiculous, and no more legally binding.

      • So, whether by gifting or abandonmnent, ownership of the CD was legally transferred in a manner equivalent to a sale, and any sticker on it is insufficient to prevent the doctrine of first sale from taking effect.

        ...

        PS, by reading this post you agree to... We've all seen comments like this in regard to EULAs and such; those stickers are no less ridiculous, and no more legally binding.

        Heh, the only thing those stickers have to do with the doctrine of first sale is the fact that they are also covered. The CD recipients now own the stickers too, and can do with them anything they jolly well want to, with the possible exception of copying them.

        They could be nice to UMG. They could bundle those stickers up, send them back and get shirty when they end up in the bin.

        • Re:Seems like the issue is confused (Score:5, Informative)

          by evanbd (210358) on Friday April 11 2008, @03:35AM (#23033882)

          The second party has to accept the contract. The man being sued did not accept the contract, and no one is claiming he did. Since there is no dispute, there is no contract law question.

          IANAL, but the EFF brief does a very good job of explaining why the CD was abandoned in the legal sense of California law. It meets the requirements of the abandonment law as far as I can see -- they gave up possession, and their actions demonstrated that they did not intend to regain possession at any time in the future. Is there any legal reason that isn't sufficient to constitute abandonment? UMG says it wasn't abandoned, but offer nothing beyond that assertion as evidence -- and the EFF presents case law that says that assertion is insufficient to create a question of fact. So why shouldn't I believe the EFF brief?

          As I said, I'm not a lawyer, but I'm interested, assuming the legalese doesn't get overly dense. The EFF brief was quite readable.

        • And the answer is... no there wasn't a contract. If I did some detective work and found out who pimpin_apollo is, worked out your street address and mailed something to you, would there be a contract? No! These guys are sending take-down notices to Ebay for traders that are selling promo copies on the basis that they are promo copies with no idea of thier provenance. If there had been some sort of record, e.g. numbered copies sent to named individuals with whom an agreement (i.e. contract) had been made then things might be a bit different, but that's apparently not the case here.

          Also, you're a little of the mark with the gift/abandonment thing. The GP is saying that that are a gift, but if it is argued that they're not a gift then they are in fact abandoned. I said similar with another comment - if they claim they have not given these items to the recipient and that claim is upheld then they should be charged with fly-tipping/dumping/whatever is the local equivalent because they are sticking object in people's mailboxes without prior consent.

  • The EFF brief is well worth reading (Score:5, Interesting)

    by evanbd (210358) on Friday April 11 2008, @01:26AM (#23033310)

    Dear record companies:

    When your own VP of content protection admits in a deposition that he has bought some of your promo CDs on the second hand market, your case that someone selling them on eBay is infringing your copyrights starts to look, well, ridiculous.

    (EFF Brief [eff.org], page 18.)

  • Unsolicited packages are gifts, as long as you're the intended recipient (and yes "The Occupier" counts). (Unsolicited Goods Act, Consumer Protection [Distance Selling] Act).

    I would say "I can't believe the US doesn't have similar laws", but I can, because I recognise a country where Corporations have a massively disproportionate sway on legislators.

    • Re:In the UK, this absolutely clear cut (Score:4, Informative)

      by techno-vampire (666512) on Friday April 11 2008, @01:52AM (#23033448) Homepage
      US law says exactly the same thing. They can't send you unsolicited merchandise and then charge you for it, and you don't have to return it if you didn't ask for it. It's yours, and you can do whatever you want with it. Whoever came up with this case should be disbarred for incompetence.
      • Both posts are true, but before we talk about the hyperbole of "absolutely clear cut" and "they should be disbarred" a point of clarification is in order.

        At common law in most of the U.S. and England, when there's a prior relationship between the parties--even if unrequested (that may well be the case here; it's not as if they're sending these out of the blue), treating unsolicited merchandise as your own may constitute an acceptance. If it's not an acceptance, it's the tort of conversion.

        See both the Resta
          • That's exactly the question. Calling the CD a gift also answers the question. It would be better to frame it as "is accepting the CD sufficient to create a contract."

            That's an open question. Despite what some people have said on here, acceptance can be manifested by "any act inconsistent with the seller's ownership" UCC 2-608. Silence is not acceptance, but it's a thin line to acceptance.

            Through the mail may be a different issue, but remember this is because of 39 USC 3009, not inspite of it.

            • Re:In the UK, this absolutely clear cut (Score:5, Interesting)

              by Anonymous Coward on Friday April 11 2008, @03:27AM (#23033846)

              "is accepting the CD sufficient to create a contract."

              No, acceptance of a gift doesn't create a contract. Otherwise the "free" gift followed by a bill scam would be legal!

              That's an open question.

              No it isn't.

              Silence is not acceptance, but it's a thin line to acceptance.

              So it's okay to rape a mute on your planet? Seriously, you can't mail contracts out to people and then claim they're legally bound by them. Even the suggestion is ridiculous.

  • Next Up (Score:5, Funny)

    by introspekt.i (1233118) on Friday April 11 2008, @01:41AM (#23033388)
    Pretty soon we'll have implants in our heads that will debit our accounts every time we recall a song from memory. Got that Shakira piece stuck in your head again? Boy, you are going to pay....dearly. Shakira-Sha--SHIT!!!

  • they should be disbarred (Score:4, Insightful)

    by TRRosen (720617) on Friday April 11 2008, @01:43AM (#23033406)
    any attorney associated with this should not be allowed to practice law. any law 101 student can tell you this is pure BS. you have to have a contract before you can enforce one. A contract requires compensation by both parties (both get something) you can't enforce any limits on something you give away for free. This is why often when property is given to charity etc its actually sold for one dollar. You learn this in the first 5 minutes of contract law!!
    • Do you know what's left for a disbarred attorney ? That's right, he can only work in record companies legal staff.

  • If they win (Score:5, Insightful)

    by Opportunist (166417) on Friday April 11 2008, @01:45AM (#23033420)
    Next step? Should be obvious, that sticker will be part of every CD sold. You may buy it, but it remains our property.

    Impossible? Don't think so. The CD already somehow changed from a necessary evil as a carrier for intangible stuff (you can't simply carry the bits in your hand, so there has to be some sort of place where you put them) to 'the' product. At least that's what the content industry tries to do, and so far quite successfully so. Media shifting is becoming more and more difficult, distributing tools that enable you to media shift easily have been outlawed, and generally the content industry is pushing towards making the medium and the content interchangeable concepts, tying the content to its carrying medium.

    This trend does not take into account that I have a valid license to the content (and if it's not, tell me what it is. I certainly don't get to own the content, so please tell me what I get when I purchase the CD). In other words, since that license contract is not limited in time, I should have the right to request the content I bought in case the carrying medium fails for some reason, since moving the content away from its carrier is being made impossible. Do I have the right to get a replacement copy? I wouldn't bet on it. And certainly I would not put any money on being able to get a fresh CD in 10 or 20 years.

    If that sticker trick works, soon the only right we'll have around content is paying for it.

  • Seems like an open and shut case (Score:5, Insightful)

    by digitrev (989335) <digitrev@hotmail.com> on Friday April 11 2008, @01:56AM (#23033462) Homepage
    I not only read the ARStech article, but the EFF article and the actual motion by the EFF. Assuming that they're quoting relevant cases (I'm not that much of a sucker for that kind of stuff), Universal is talking out their ass and trying to squash first sale rights.

    To summarize, they sent out the CDs unsolicited, which according to the law, makes them gifts. That means it's as if the recipient bought the CD, and hence triggered first sale doctrine. So the eBay reseller is in no way whatsoever violating copyright. Especially since the guy in charge of copyright at Universal admits that he has, in the past, bought promo CDs from record shop.

  • cant have it both ways (Score:4, Interesting)

    by TRRosen (720617) on Friday April 11 2008, @03:41AM (#23033906)
    these lawyers should really read there own briefs. There is no copyright law in play here. Universal is the copyright holder and Universal made the copies. filing a DMCA is harassment and abuse of process. By there own statements there claiming that they own the cd's ... So its a case of selling stolen property. There saying to original recipients did not have standing to sell the cds to the defendant. But i can guarantee the cds are not listed as assets by the company. So we have a company claiming this guy is selling stolen merchandise that in other legal fillings (read SEC) they don't claim to own. If this guys lawyers are any good he'll retire to a nice island in the bahamas after this.

    • Re:What are the long-term effects? (Score:5, Insightful)

      by snkline (542610) on Friday April 11 2008, @01:30AM (#23033332)

      In the case where there was a pre-existing contract to even receive the promo disks, it is a completely different story.

      This is a case of promos being sent out unsolicited, with restrictions stickered onto the cover.

        • Why not ask an easier question, then? (Score:5, Funny)

          by Anonymous Coward on Friday April 11 2008, @05:34AM (#23034308)
          If you're going to ask questions just to see an answer, that is.

          How about: what about if the CD sticker said that by reading the sticker you agree to deep throat the VP of marketing? Would that be legally binding?
          I mean, if we're going to be making shit up and all, just to ask hypothetical questions, why not go for the gusto?

    • Re:What are the long-term effects? (Score:5, Insightful)

      by Khaed (544779) on Friday April 11 2008, @01:40AM (#23033382)
      They're not doing whatever they want with it. They're selling the physical copy. This is a different.

      There was no contract. Therefore, there's no "Well IF they had a contract..." That's totally besides the point. IF they get a contract, then they can expect it to be followed. No one is arguing this.

      But if they just send someone a CD -- for free -- then they can't dictate that the person not resell that CD. And since it's for free, I don't know that "first sale" applies.

      • Re:What are the long-term effects? (Score:5, Informative)

        by evanbd (210358) on Friday April 11 2008, @01:56AM (#23033468)
        First sale absolutely applies, as there is plenty of legal precedent that gifts count as sales for purposes of the first sale doctrine. The EFF brief [eff.org] has all the detailed arguments, and plenty of references. It's also quite readable, and quite thorough about dismantling UMG's arguments.

      • Re:What are the long-term effects? (Score:5, Interesting)

        by Library Spoff (582122) on Friday April 11 2008, @02:15AM (#23033536) Journal
        This happened to my pal who owns a record shop. He found a *5* year old madonna promo in the back shop. Stuck it on ebay to see what he'd get and the auction got pulled.if it was a pre-release, fair enough. But it was 5 years old...

        • Re:What are the long-term effects? (Score:4, Insightful)

          by Danga (307709) on Friday April 11 2008, @03:24AM (#23033828)
          Wow, that is crazy they pulled it even though it was 5 years old! Do you know if it was pulled by an automated system or not? If it was something like a computer program that checks the auctions for "CD" and "Promo" and then pulls the auction if both of those are found then that would not be as bad but that still would be horrible to have happen. If it was a human screener on the other hand then this is just crazy and probably the result of some draconian standard operating procedures being in place.

          On another note, what effect would this have on collectors if Universal wins? Collectors usually want EVERYTHING and rare things such as this CD are worth even more to them. I know this is just eBay and collectors can always go to stores/swap meets/etc but it is just hard to me to understand how something sent to you for free and unsolicited cannot be sold.

    • Re:What are the long-term effects? (Score:5, Insightful)

      by wizardforce (1005805) on Friday April 11 2008, @01:51AM (#23033442) Journal

      Of course, on /. there's the normal "I have the physical copy, I can do whatever I want with it" mentality.
      not just here but apparently in the courts as well. they mailed these cds out to people as gifts and then try to claim otherwise.

      But what if Universal had signed a contract with each and every DJ and reviewer that got a promo copy that said "in exchange for getting this CD a week early, you have to keep it secret." Would people still be in favor of the rule that the person with their hands on the physical copy gets to do whatever they want with it?
      except that they did nothing of the sort. you're trying to shift the argument to one that is completely irrelevant in this case. an existing legal contract that is binding is not the same as mailing our media that is intended as advertising verging on SPAM.

      • But what if Universal had signed a contract with each and every DJ and reviewer that got a promo copy that said "in exchange for getting this CD a week early, you have to keep it secret." Would people still be in favor of the rule that the person with their hands on the physical copy gets to do whatever they want with it?
        except that they did nothing of the sort.
        Not to mention that they'd be going after the DJs/radio stations for breach of contract, not this copyright nonsense.

    • The long term effects (Score:5, Interesting)

      by Per Abrahamsen (1397) on Friday April 11 2008, @02:02AM (#23033486) Homepage

      But what if Universal had signed a contract with each and every DJ and reviewer that got a promo copy that said "in exchange for getting this CD a week early, you have to keep it secret."
      The key phrase from the parent was unrequested by the recipient. It is fundamental to contract law, that a contract must be accepted by both parties to be valid. The "long term effect" of abandoning that is severe.

      The way to deal with reviewers who doesn't treat your unsolicited promo material with proper discretion, is to stop sending unsolicited promo material to those reviewers.

      It's not an easy issue and there are arguments on both sides.
      Yes, on one side there is respect for the fundamentals of contract law. On the other side, there is the slight inconvenience of labels to have to maintain a list of trusted reviewers (rather than just maintain a list of reviews).

      It does say something about how the labels have gotten adjusted to having the law formed for their convenience, that they now want to change how the legal system works, just to avoid the inconvenience of making some minor changes to their internal procedures.

    • Re:What are the long-term effects? (Score:5, Insightful)

      by Anonymous Coward on Friday April 11 2008, @02:10AM (#23033508)
      That is entirely a straw man argument; genuinely incurred contractual obligations are an entirely separate matter.

      No one is arguing that if a DJ signs an NDA, he can then turn around and cry, "First Sale, hahahaha!" What we are in fact arguing is that the fact that a disc, sent unrequested, has some words physically printed on it does not constitute a contract.

      Consider it this way: The discs, according to TFA, said, "Not for Resale." With whom has the recipient signed a contract? An inanimate object that appeared in his mailbox? What consideration does the recipient gain by this contract that would render it legally supportable?

      Remember that contracts require both parties to receive some benefit, even if it's inherently unequal. What benefit does the recipient get by agreeing that the disc is, in fact, not for resale?

      Suppose, for a moment, that the recipient does not wish to be a party to the contract in the first place. If he does not agree to it, then doesn't the disc---which was mailed to him without any prior agreement---simply exist as his property? Why shouldn't he be able to sell it, regardless of what's printed on it?

      The basic consideration is this: even if we assume that UMG is so incompetent and lazy that they cannot be bothered to arrange even oral agreements with potential reviewers AND we are absolutely desperate to ensure that UMG keeps sending out discs... ...how on Earth could that possibly justify the notion that a person can be contractually bound by the unasked-for appearance of an inanimate object bearing arbitrary terms? You're right that there's more than just this case---but it is an easy issue and there are not legitimate arguments on both sides.

      If you can look me in the eye and tell me that you're okay with the notion that I can write "You must give me all your money" on a baseball, hurl it at your head, and thusly legally obligate you to obey my baseball---all to save UMG the trouble of asking DJ's to agree in advance not to share promo discs; then I can look you in the eye and call you an idiot.

      • Re: (Score:3, Insightful)

        by uglyduckling (103926)
        Another angle is that UMG put an object into someone's mail box. If they don't want that object to be treated as a gift for the recipient to be done with as they pleased, and if there is no prior agreement for that object to be placed there, they are effectively dumping litter, just as if they had placed an empty coke can in the mail box. I should imagine there's laws on dumping or 'fly tipping' in most states, and UMG must be doing it on a grand scale, so if they win this case they should be prosecuted o

      • "Not For Resale" (Score:5, Insightful)

        by jbengt (874751) on Friday April 11 2008, @09:05AM (#23035804)
        "Not For Resale" was probably put there by one of their lawyers in the first place to avoid some retail tax or artist royalty.

      • Re:What are the long-term effects? (Score:5, Funny)

        by dogzilla (83896) on Friday April 11 2008, @09:14AM (#23035918) Homepage
        "If you can look me in the eye and tell me that you're okay with the notion that I can write "You must give me all your money" on a baseball, hurl it at your head, and thusly legally obligate you to obey my baseball--"

        I laughed at the silliness of this when I read it, but I did take the time to test this thesis. Here's the thing: it worked! Admittedly, I used a small statistical sample, but I'm heading out to Boston Commons right now to conduct further tests. I am carrying several other baseballs as well, some read "You must provide oral sex" and "You cannot arrest me under any circumstances". I'll let you know how that works out.

    • Re:What are the long-term effects? (Score:5, Insightful)

      by 1u3hr (530656) on Friday April 11 2008, @04:40AM (#23034104)
      But what if Universal had signed a contract with each and every DJ and reviewer that got a promo copy

      Then of course they could enforce this contract. The whole point is that they are trying to UNILATERALLY take away legal rights of people WITHOUT any contract. If you allowed this there is no doubt they would be slapping all kinds of restrictions on every CD, book, DVD they produced.

      the world would be better off if the person with the physical object gets to resell it, no matter what the contract says. But is the world better off if Universal sees what happens and stops giving out review and promo copies?

      Universal is free to try to make contracts with reviewers before sending them CDs. They choose not to, not wanting to annoy them. Their choice. Will the world be better off? Excuse me while I snicker.

      And Universal is going to quite logically not send out promo copies

      No, quite logically they will. They NEED promotion. They spend more on promotion than any other single expense. If promotional items turn up on eBay months later, so what? There are only a relative handful of these. If people reproduced them that's another case entirely. Only rabid collectors want this kind of thing, and they buy every release of their favoured artist anyway.

      I've got a bunch of prepublication copies of books, various people in the trade have donated to a local thrift shop. Publishers have been sending these out to reviewers and purchasing managers for CENTURIES, and for centuries, the reviewers have given them away or sold them later. It's been going om in music ever since 78 RPM records. There is demonstrably no damage to the music publishers. The only reason it's an issue now is that it's more visible, being on eBay. But the actual number of discs on offer is the same as ever.

    • I worked the arts desk for a school paper for a year. I can tell you flat out they do NOT make you sign anything, they just send you boxes and boxes of CDs to review. I used to hold a contest a week to give out whatever I reviewed that week in our office because they do NOT collected nor make any attempt to collect them later.

      And the rarely if ever do you get a CD before the street date. Maybe a week or two. But good artists? Nope never happens. What they typically do is invite you to a listening party to review it (while at the same time showering you with food and drink to bribe a good review out of you.)

      And the REAL truth is the CDs ARE paid for. They charge the artist for "promo" copies as part of advertising. Universal claiming these are their CDs is about as big a joke as the RIAA in general. They where bought by the artist... if anyone has the right to tell people what to do with them, its the guy who's salary was raped by the suits.

    • Re:An unrequested book? (Score:5, Insightful)

      by snkline (542610) on Friday April 11 2008, @01:31AM (#23033346)
      No, you couldn't copy it, but if they just give you the book, they can't attach a contractual obligation not to resell after the fact. You could sell the copy you received, not make more copies.

        • Re:This is about CONTRACTS not COPYRIGHT (Score:4, Informative)

          by Teran9 (1163643) on Friday April 11 2008, @03:15AM (#23033774)
          Read the documents. You are advancing hypotheticals that do not apply to the facts of the case. The CDs were delivered primarily through the mail and UPS. That makes them gifts. It does not matter if there was a preexisting relationship. Even if you discount that they were gifts, it was abandoned property. Even if you get past that... Read the article and filings...

    • Re:Same issue with textbooks (Score:4, Insightful)

      by ancarett (221103) on Friday April 11 2008, @07:59AM (#23035110) Homepage
      As a professor, I'm inundated with unrequested "examination copies" of textbooks (oftentimes irrelevant for the subfields I teach). Nowadays these same annoying shipments come with specially printed covers outlining all the restrictions on what I can do with the books I didn't request and don't want.

      Preferentially, I'll do the rep's work for them and give the book to a professor who might actually find it useful. If there are no takers, I'll dump the books near the grad students' office and offer them first dibs. And, generally speaking, I won't adopt other books from those publishers because I know they're racking up huge bills with these unnecessary promotions and special printings that end up being reflected in the insane costs of textbooks (particularly those for introductory level courses).

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