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."
Seems like the issue is confused (Score:3, Interesting)
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?
Didn't we already see this with the cuecat (Score:1, Interesting)
Unfortunately for the company, people had better ideas what to do with the product. The company tried to sue and they were laughed out of court.
The EFF brief is well worth reading (Score:5, Interesting)
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.)
In the UK, this absolutely clear cut (Score:5, Interesting)
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:Seems like the issue is confused (Score:5, Interesting)
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.
The long term effects (Score:5, Interesting)
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 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, Interesting)
Re:Seems like the issue is confused (Score:2, Interesting)
Re:In the UK, this absolutely clear cut (Score:5, Interesting)
No, acceptance of a gift doesn't create a contract. Otherwise the "free" gift followed by a bill scam would be legal!
No it isn't.
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.
cant have it both ways (Score:4, Interesting)
Re:Seems like the issue is confused (Score:4, Interesting)
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.
Re:when would they learn.... (Score:5, Interesting)
Re:when would they learn.... (Score:5, Interesting)
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.
Comment removed (Score:5, Interesting)
Re:when would they learn.... (Score:4, Interesting)
Not unrequested (Score:2, Interesting)
Re:when would they learn.... (Score:5, Interesting)
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.