Universal Attacks First Sale Doctrine 297
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."
Re:Didn't we already see this with the cuecat (Score:2, Informative)
Re:Seems like the issue is confused (Score:5, Informative)
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:In the UK, this absolutely clear cut (Score:4, Informative)
Re:What are the long-term effects? (Score:5, Informative)
Re:This is about CONTRACTS not COPYRIGHT (Score:4, Informative)
Re:Seems like the issue is confused (Score:5, Informative)
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.
Re:Seems like the issue is confused (Score:3, Informative)
What's going on here is nothing special to CDs - if you send something through the mail unsolicited then it belongs to the intended recipient, and they have every right to do with it as they please within the confines of applicable law. It would be illegal to make a copy of a copyright work without permission of the copyright owner, but it would not be illegal to sell or give it away, so that's fine.
If you had joined a book club then received a book+invoice, fair enough - or in this case joined a 'promo club' with T&Cs - then there might be extra terms in addition to the law (i.e. you entered into a contract). Otherwise the sender can write whatever they want on the object and it doesn't matter - the recipient never agreed to those terms and doesn't have to abide by them, in which case they can treat the object as they would anything else they happen to own.
Re:Seems like the issue is confused (Score:2, Informative)
Re:when would they learn.... (Score:4, Informative)
Re:when would they learn.... (Score:2, Informative)
Re:when would they learn.... (Score:5, Informative)
Re:when would they learn.... (Score:3, Informative)
Under U.S. law, what the recipient "owns" is a plastic disc (pretty much irregardless of what data is encoded on said disc). AOL can't deter someone from selling that particular disc -- not arguing that an AOL disc would be worth anything to begin with. It is actually a good consumer protection law, preventing companies from doing things like sending "free samples" and then attempting to bill you for it.
It is essentially a private property issue. This case with the music promotion discs seems to fall along the same lines. I'm pretty sure that Universal is upset because these promo discs are distributed before the actual album is released to the public. Tough beans for them. In America we have a phrase: Indian giver (one who gives away something then tried to take it back). IMHO, the proper resolution is to hold back the promos until the actual album is released and ignore the underground market for these promo discs.
Re:when would they learn.... (Score:3, Informative)
Re:when would they learn.... (Score:3, Informative)
From Wikipedia:
"The United States Postal Service (USPS) is an independent agency of the executive branch of the United States government (see 39 U.S.C. 201) responsible for providing postal service in the US. Within the United States, it is colloquially referred to simply as "the post office", "the postal service", "the mail" or "USPS"."
Re:when would they learn.... (Score:3, Informative)