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:When would they learn.... (Score:5, Funny)
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:2)
1. send out promo CDs clearly identifying them as property of UMG despite the fact that they're unsolicited and no exchange of money or other compensation to receive them.
2. ?
3. profit!
ed
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I don't like other people making me lose money.
Personally I think UMG is looking at this issue all wrong. They should be happy that the CDs are being passed person-to-person, thereby doing the job they were intended to do (promote songs), rather than getting thrown into a landfill.
Re:when would they learn.... (Score:5, Funny)
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:5, Informative)
Re:when would they learn.... (Score:4, 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.
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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.
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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: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.
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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
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Re:when would they learn.... (Score:4, Informative)
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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?
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It is not a doctrine, however, that says the copy must be sold for the own to be protected; merely instead that who ever owns a particular copy is entitled to control that copy--including being entitled to resell it.
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: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.
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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.
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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: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.
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I mostly just assumed that there would be a problem because the little bags wouldn't have the statutory ingredients, nutrition, and expiry info on them, but school fete's etc do it all the time.
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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
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Post-release, you can sell freebie copies. The stuff we get as release-party schwag has been known to hit eBay.
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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
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I don't think this is a First Sale issues, since, clearly, the discs are at no time sold.
Whether or not this falls under first sale, the title is still misleading - Universal isn't attacking "first sale". They're claiming it doesn't apply here since they're not sold. That would exclude things like, say, second-hand albums that were actually bought. Typically inaccurate, incendiary headline.
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:In the UK, this absolutely clear cut (Score:4, Informative)
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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
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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)
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.
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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
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Next Up (Score:5, Funny)
Re:Next Up (Score:5, Funny)
But just the mention should be enough to put 'Never gonna give you up' back in your mind :P
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*hums quietly. Catches himself.
Fuck You. I was an innocent bystander.
--Triv
they should be disbarred (Score:4, Insightful)
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Or a government position perhaps?
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.
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DRM on music was one thing but having a EULA for a music CD is a bit much.
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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.
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.
The most chilling thing about this... (Score:2, Funny)
I hope you kept them in a safe place
cool... (Score:2)
Storage Location (Score:2)
just a thought (Score:2)
cant have it both ways (Score:4, Interesting)
Donate to the EFF! (Score:2, Insightful)
couldn't agree more with tags (Score:2, Funny)
Same issue with textbooks (Score:2)
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: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.
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I was just asking about a more difficult case that implicates a lot of the same ideas.
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Maybe we should all unite and send them back..... them videotape the scene as the AOL office finds itself buried under a massive mound of discs.
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Replace CD's with hazardous waste and AOL w/ producer of said waste, and yes they(the producer) would be on the hook for the waste.
Why not ask an easier question, then? (Score:5, Funny)
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)
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)
Re:What are the long-term effects? (Score:5, Interesting)
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.
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Bugger, I've just mailed them photo with a EULA that takes effect when they open the envelope, and a bill for...(cue: pinky)...ONE MILLION DOLLARS.
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.
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Re:What are the long-term effects? (Score:4, Insightful)
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, 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.
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"Not For Resale" (Score:5, Insightful)
Re:What are the long-term effects? (Score:5, Funny)
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.
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Just make sure that your aim is good and that you don't switch the baseballs by mistake!
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.
Comment removed (Score:5, Interesting)
What it? (Score:2)
What if pigs could fly? What if I won the lottery? What if CowboyNeil got laid? What if Sony's Ceo's wife was a crack whore? (oh wait...) What if water was undrinkable?
What if your post got modded "-1, troll"?
Re:An unrequested book? (Score:5, Insightful)
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In your example, if they send you the book, the book is yours. You can give it to a friend, sell it to a friend, donate it to a library, burn it, toss it in the ocean, and do just about anything you want with it as if you had purchased it. It's a gift, which means you own it, you do whatever the hell you want with it.
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Re:CD's are dead (Score:4, Funny)
You got some evidence that vinyl is growing?
Re:CD's are dead (Score:5, Funny)
That would be the resistor between pin 6 and pin 2.
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It might also come in handy during your yearly review - it would give you useful feedback.
Re:CD's are dead (Score:4, Insightful)
Digital Distribution may kill CD's, vinyl sure as hell won't.
Re:This is about CONTRACTS not COPYRIGHT (Score:4, Informative)
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