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."
When would they learn.... (Score:5, Insightful)
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.
Re:What are the long-term effects? (Score:5, Insightful)
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.
Re:An unrequested book? (Score:5, Insightful)
Copytight (Score:0, Insightful)
Re:What are the long-term effects? (Score:5, Insightful)
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.
they should be disbarred (Score:4, Insightful)
If they win (Score:5, Insightful)
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.
Re:What are the long-term effects? (Score:5, Insightful)
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.
Seems like an open and shut case (Score:5, Insightful)
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.
Re:What are the long-term effects? (Score:5, Insightful)
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...
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.
Read this carefully. (Score:1, Insightful)
By reading this comment, you agree that 10% of your gross income belongs to Twitter. I know that you did not ask for this but you will be one of the first few to read it and that, by your own argument, is worth more than your freedom. Be glad I don't ask for more, but Moses once argued that a happy slave is more productive than a hungry one so this works out for both of us.
Seriously, it's that bad. If the MAFIAA was not happy with people selling their crappy little promo copy, they could simply strike those people off the promo list. That's easier and cheaper than filing a laughably stupid lawsuit. The only explanation for the suit is that the MAFIAA needs the DJs more than the DJs need the MAFIAA and the only way to make the DJs do as they are told is to harass them with lawsuits. Let's hope the MAFIAA loses this one and has to pay cost and damages.
Re:In the UK, this absolutely clear cut (Score:3, Insightful)
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 Restatement (Second) of Contracts  69 and Section 2-606 of the Uniform Commercial Code. There is an exception, however, in modern U.S. law for items sent through the postal service. See 39 U.S.C.  3009.
Before we rant too much, you ought to have some sense of the history here. Again, this is not a COPYRIGHT case--fair use is a red herring here. This is a contract case.
Re:Seems like the issue is confused (Score:1, Insightful)
Want to take people's rights away? Make them sign a contract. No contract? Don't run crying to mommy when they take advantage of their legal rights.
Re:In the UK, this absolutely clear cut (Score:3, Insightful)
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:What are the long-term effects? (Score:4, Insightful)
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:3, Insightful)
Re:CD's are dead (Score:4, Insightful)
Digital Distribution may kill CD's, vinyl sure as hell won't.
Donate to the EFF! (Score:2, Insightful)
Re:What are the long-term effects? (Score:5, Insightful)
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.
Re:An unrequested book? (Score:3, Insightful)
Re:If they win (Score:3, Insightful)
The argument is about whether first sale doctrine applies to unsolicited product, not products you pay for. Presumably UMD claims that the sticker is a contract, and that UMD can enforce this contract the second it arrives (presumably unsolicited) into a person's mailbox.
IANAL, and I don't know what precedents exist for first sale doctrine and software delivered on a physical medium, but what you're bringing up is a different issue.
Re:Seems like the issue is confused (Score:2, Insightful)
Nor Am I A Lawyer (NAIAL), but there is a variant of that labeling that sheds light:
"*Not Labeled* for individual sale". The shortened you mention only serves to masquerade as a contract problem. The labeling situation means that the original company met the food labeling requirements on the external package only. This means that if you tried to sell the individual units, you would be acting as a reseller, but the responsibility for selling an insufficiently labeled item falls to you. If you taped copies of the external ingredients labeling to the smaller units, you might be okay.
Re:In the UK, this absolutely clear cut (Score:2, Insightful)
I don't think the issue is as cut and dry as you say.
While it's clear that the mere receipt of a gift is not binding as a contract, and that under normal circumstances silence is not acceptance, retention of a good may be sufficient to justify enforcement of a shrinkwrap contract. (e.g., if consideration requirements are met. [Note to nonlawyers--The fact that gifts aren't binding is due to the lack of "consideration," a legal term meaning a "bargained-for exchange."])
In Hill v. Gateway 2000 [emory.edu] , Judge Easterbrook held that retention of goods with a reasonable opportunity to return the merchandise can make a contract binding. 105 F. 3d 1147 (7th Cir. 1997).
In Hill, consideration wasn't an issue (goods were purchased), but I believe the reasoning is broad enough to allow implied consideration via retention and use. Easterbrook's reasoning didn't turn on whether the good was solicited or not, and could treat retention as an acceptance of an entire contract, including an implied exchange of consideration not expressly stated (a "bargained-for exchange," where Universal gains their publicity purpose and the recipient gains use of the media). It's weak, but the argument is there.
Additionally, Hill wasn't without controversy-- Klocek v. Gateway [internetlibrary.com] rejected this reasoning, in my opinion rightly, because it didn't apply the proper UCC analysis. 104 F.Supp.2d 1332 (D. Kan. 2000).
So in short, the requirements of a contract still need to be met, and the unsolicited nature of the 'gift' weighs heavily against this, but I can see the decision coming out the other way so long as the court 1) subscribes to the Easterbook reasoning, and 2) finds that retention and use of the object sufficient to satisfy consideration requirements. Not likely, but it wouldn't be as strange as, say, people having tentacle heads.
Re:Same issue with textbooks (Score:4, Insightful)
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).
Re:when would they learn.... (Score:3, Insightful)
Re:when would they learn.... (Score:2, Insightful)
"Not For Resale" (Score:5, Insightful)
Re:What are the long-term effects? (Score:4, Insightful)
Re:when would they learn.... (Score:1, Insightful)
Re:when would they learn.... (Score:3, Insightful)
Re:when would they learn.... (Score:4, Insightful)
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.
Re:O RLY? (Score:1, Insightful)
Re:What are the long-term effects? (Score:1, Insightful)
Re:when would they learn.... (Score:3, Insightful)