Is Selling A CD You Found In The Trash Copyright Infringement?
from the so-sayeth-the-courts dept
However, what no one seems to clearly explain is where the infringement is? BMG instructed the CDs to be thrown out. The Post Office threw them out. At that point, the property has been relinquished by BMG and the Post Office, so it would appear that anyone who finds the discs wouldn't be committing any kind of infringement (or, for that matter, fraud) in selling them. A lower court ruling was especially bizarre, in demanding that the guy give up all the money he earned to BMG due to the "lost opportunity" to BMG in selling the music. As we've discussed at length before a "lost opportunity" is not an actual loss and it's not a crime. It's simply a marketing challenge. Otherwise, just about any business could be guilty of creating a "lost opportunity" for any competitor. The pizza shop down the street creates a "lost opportunity" every time I eat there instead of the deli. Hell, just buying one musician's CD rather than another's creates a "lost opportunity." So, it's ridiculous to equate a "lost opportunity" to a crime -- and even worse when that "lost opportunity" was self-created by BMG choosing to throw out the discs.
Luckily, the Appeals Court tossed out the "lost opportunity" part, but as Patry notes, it doesn't appear that anyone questioned how the facts of this case could possibly be considered copyright infringement. Selling used CDs is considered to be perfectly legal and non-infringing. How is selling CDs that have been thrown in the garbage any different?