Is Selling A CD You Found In The Trash Copyright Infringement?

from the so-sayeth-the-courts dept

Various courts have held that by putting something in the trash, you are relinquishing your ownership of those goods. However, apparently that might not apply to music. William Patry has the story on an unfortunate decision by our court system, suggesting that if you find a CD in the trash and sell it you may be charged with copyright infringement. The story of the case is as follows: BMG famously offers a CD and DVD "club" that sends out new CDs and DVDs on a regular basis to subscribers. Sometimes those subscribers move and cannot be found or for whatever reason the discs are determined to be "undeliverable." BMG so devalues its own discs that it has told the post office to throw out the undeliverable discs, rather than spend the postage to have them sent back to BMG. The post office dumps the discs in its dumpsters -- at which point a Postal Service employee dumpster dives to rescue them. He then goes and sells those discs to local stores, cashing in to the tune of nearly $80,000. This gets discovered, and he gets charged with mail fraud before settling on charges of copyright infringement.

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?


Reader Comments (rss)

(Flattened / Threaded)

  1.  
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    Hellsvilla, Feb 14th, 2008 @ 8:56am

    Arme juridique escalade

    Sounds like a case of one party being under-represented in comparison to the other guys "legal weapon".

    In other words, he likely brought a pea shooter to a gunfight, whereas BMG likely brought its nukes.

     

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    ProgrammingJunkie, Feb 14th, 2008 @ 9:01am

    Does this mean if someone breaks into my house and steals my CD's, and sells them that he is also infringing on the copyright?

     

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    Beefcake, Feb 14th, 2008 @ 9:16am

    Re:

    No, according to RIAA "illegal download" lawsuits, it means YOU are infringing the copyright for providing the means for someone else to re-sell the CDs. Glorious logic, eh?

     

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    Anonymous Coward, Feb 14th, 2008 @ 9:23am

    Re:

    Yes, and you probably are too if Big Content is to be believed on such issues ;)

     

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    Anonymous Coward, Feb 14th, 2008 @ 9:25am

    This has absolutely nothing to do with copyrights. No illegal copies of any music have been made, period. The only possible legal infraction here would be if there is some law that says that taking things out of a dumpster on government property is illegal, which I doubt very much. If it's thrown away, it should be clear that the place that threw it doesn't want it, and it then becomes fair game. If the guy just took the CDs, that would be one thing, but if he literally picked them up out of the dumpster, they're his.

    There is no way anybody in their right mind could complain about copyrights in this case, because nothing, absolutely NOTHING, has been copied. Legal discs just changed ownership, which is perfectly legal. If I buy a CD for $20, it becomes mine. If I can get somebody to buy it from me on eBay for $200, that's my privilege (and luck) since I have purchased the right to do whatever I want with the physical disc.

     

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  6.  
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    Anonymous Coward, Feb 14th, 2008 @ 9:38am

    Homeless people are steeling from the state!?

    If the dumpsters are provided by the state, anything that goes in to them is now considered state property. and anyone other than the state's trash collection workers taking anything out of those dumpsters are steeling from the state.

    ...at least this is how I heard it regarding those blue-bins that the homeless people really like to take plastic bottles and cans from.

     

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    nunya_bidness, Feb 14th, 2008 @ 9:40am

    poetic justice

    one mans trash is another mans treasure

     

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    Brent Bonn, Feb 14th, 2008 @ 9:48am

    selling used CDs

    If that is a precedent to be set. Shouldn't the RIAA be going after every used CD store, thrift store that sells CDs, Cassettes and LPs, all pawn shops and charity organizations that hold fundraising used LP sales and garage/yard sales?

    That would really suck.

     

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    Brent Bonn, Feb 14th, 2008 @ 9:50am

    selling used CDs

    If that is a precedent to be set. Shouldn't the RIAA be going after every used CD store, thrift store and pawn shops that sells CDs, Cassettes and LPs, and all charity organizations that hold fundraising used LP sales and all private garage/yard sales that sell off their old cassette tapes?

    That would really suck.

    And what is to come of mixtape culture. What am I going to give my sweetheart on Valentines day? Chocolates I guess. Fatten her up a bit, rather than turn her on to some good new music she may not have heard.

     

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    jj, Feb 14th, 2008 @ 9:57am

    finder's keepers

    In many jurisdictions, once trash is out on the curb, it's no longer the property of the last owner. I recall someone going through Madonna's public trash and selling the contents on ebay.

    Given as the new owner of a disc has right of first sale, there is no copyright infringement, imo.

     

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    inc, Feb 14th, 2008 @ 9:59am

    I for one hope the laws get so ridiculous that the backlash dissolves all but the most basic protections of copyright.

     

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    Nvrsatysfyd, Feb 14th, 2008 @ 10:05am

    I'd still sell them. I'd just take off the wrapper and sell them as used. :] Lets see how they like that.

     

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    James Stevens, Feb 14th, 2008 @ 10:37am

    Sony BMG is NOT green

    Sony BMG should receive negative attention for throwing away all these CDs when they should have been recycling them. Way to go green, Sony BMG. Now it is our job to spread the word of this case and how Sony BMG isn't very green. Write in to TV news stations and post like crazy on other sites.

    Judging by this entry, nothing was charged against the man in court that dealt with stealing from a dumpster, so the only problem here is we have a court dishing out a terrible verdict in finding the man guilty of infringement... he had some luck and some common sense, and he put the two together.

     

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    James Stevens, Feb 14th, 2008 @ 10:38am

    Sony BMG is NOT green

     

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    D, Feb 14th, 2008 @ 11:04am

    Similar to books?

    I don't know about the particular charge, but isn't this similar to when book stores rip the covers off of unsold books? It is illegal to resell those books because the bookstore will report them to the publishers as unsold and the publisher will not get paid for them.

     

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    Dave Z., Feb 14th, 2008 @ 11:11am

    Re: Similar to books?

    I don't think it is similar, because book stores are getting credit for the unsold books by returning only the covers and have due diligence responsibilities to dispose of the rest of the book insides correctly.

    I don't think there is any responsibility on the USPS since they are just the carrier. And once the responsibility is relinquished, it becomes like any other trash.

     

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    4-80-sicks, Feb 14th, 2008 @ 11:16am

    I was thinking about this just the other day as I recorded The Very Best of The Ventures 12" that I found in the alley behind my house onto my computer and saved it as MP3s. This is pretty much the only reason I even have a record player, come and get me!

    I recall someone going through Madonna's public trash

    lol

     

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    Former Bookseller, Feb 14th, 2008 @ 11:22am

    As D Mentioned...

    This is the exact same process by which bookstores "return" magazines, comics, and mass market paperbacks, as D mentioned.

    They use the same justification, as well. Retailers report the items as unsold and receive a partial credit from vendors.

    I would not be surprised if grocery stores deal with their unsold goods in the same way - it's not like they send their produce back to the farmers, so they must destroy what's left, but then they probably report it as a loss.

    Though, obviously, the shelf life of a book, CD, or DVD is longer than the lifespan of the average orange.

    It's a bit of a tricky situation, though - I understand that for tax purposes and business reasons it makes more sense to destroy remainders than to ship them back, but I do question the illegality of going through "destroyed" property and making use of it.

    You'd think the items could be donated, or put to some other beneficial use, but if you were caught taking "stripped" merchandise anywhere but the trash, you'd get fired for the attempt.

     

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    harvardjanitor, Feb 14th, 2008 @ 11:25am

    This Kinda Makes Sense

    When you throw something away, it shouldn't be picked up by anybody unless you give full consent. There's a lot of private stuff in people's trash that should never be learned about by other people (examples such as written information), and nobody has a right to that kinda stuff, even if it is THROWN AWAY.

    When something is thrown in the trash by someone, it's not always the case that they don't care what happens to it, they just want it gone, and this should be respected.

     

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    TacoJim, Feb 14th, 2008 @ 11:32am

    Blockbuster DVD

    A few years ago when i worked for Blockbuster Video we had to destroy all of our unsold/used inventory. It usually involved a few hammers and some time. We then dumped them in the dumpster. At the time this struck me as being completely un-green. I now see this practice is quite common among consumable media companies.

     

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    Chronno S. Trigger, Feb 14th, 2008 @ 11:46am

    Re: As D Mentioned...

    But it's not like that. The USPS isn't a reseller, they don't get credit for unsold copies. They are just a carrier. If BMG thinks so little of it's CDs that it just tells them to throw away the undeliverable CDs then it's the post office's to do with what they wish.

    The Post office doesn't have tax breaks. There is no destruction of unsold products. There is no "stripped" merchandise (and the said firing is company policy not law).

    Taking items from dumpsters isn't against any law. Dumpster diving even for personal information isn't against the law. Using that information is. This is why poparatzi can dig threw trash and not get into trouble. This is why the homeless can get cans without issue. This is exactly why they try to drill it into your head to shred personal documents.

    -July, Boycott RIAA/MPAA

     

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  22.  
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    notarootkit, Feb 14th, 2008 @ 12:06pm

    My 10-year-old has a better business model

    Funny how BMG doesn't care about the "lost" opportunity ($$) until someone else finds a way to make money from their stupid business practices.

    Instead of trashing the CDs, they could pay the $.50 to be returned, sell them a 50% to [generic big-box retailers] and recover some of the cost. In the process, they would be able to determine the invaild addresses and discontinue mailing more CDs!

    Geez..this is so hard to figure out.

     

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    niftyswell, Feb 14th, 2008 @ 12:21pm

    environmental impact

    What about the environmental impact of dumping 80k worth of plastic into a landfill, wouldnt it be better off recycled? There are all kinds of chemicals used in the packaging and production of this material that is being wasted. If BMG has a problem with people salvaging and reclaiming its waste then it should pay a penalty for the disposal of the material...and that was just a single post office. How much plastic is actually being disposed if you add up all the material being tossed? Does BMG help offset the public money spent to carry that stuff off to the dump? I very much doubt it.

     

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    Anonymous Coward, Feb 14th, 2008 @ 12:26pm

    Re: This Kinda Makes Sense

    Oh, bull. You threw it away, you're done with it. If you DO care what happens to it, like written documents, shred it. It's been previously held that trash is public once it's on the curb; when I was a psychology student, this was noted as the only reliable way to measure how much alcohol households consume, for instance. I assure you the alcoholics inside weren't thrilled about being found out.

     

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    Tamara Denshire, Feb 14th, 2008 @ 12:54pm

    Of course he should be charged

    They are unsold copies, so they are illegal copies of the music. If the person purchased the CDs and then threw them out, then there might not be a problem(depending on council laws regarding going through other peoples garbage). But there definitely would not be a state or federal crime committed. Commericial properties though it's always illegal to go through their bins if you do not work for them. The USPS employee would not be committing a crime going through his own bins if he didn't take any written-off goods.

    No one purchased the CDs; BMG made no proft from those CDs; so for someone to then sell them without paying a percentage to BMG should be charged. It's different to breaking into a store and stealing a lot of CDs. That's still a crime, but it's not copyright infringement as BMG would still get paid courtesy of the insurance that the store has. Selling written-off goods is a crime.

    I work in retail. Goods that get written off and thrown in the bin cannot be used. Staff at the store cannot take them, even if they're perfectly usuable. Anyone caught taking the products out of the bins get charged with shop-lifting.

     

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  26.  
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    Brent Bonn, Feb 14th, 2008 @ 12:58pm

    death by popcorn

    A similar thing happened here in Winnipeg recently. One of our local TV stations relocated their studio from next to the old to be demolished Hockey arena to a new state of the art downtown studio. In the move they decided to dispose of some of their old archival beta tapes. Mostly Hockey Games and sports cast interspersed with vintage local advertising.

    An enterprising group of young film makers were tipped off about the stations negligent disposal method. They simply dumped the tapes intact into a refuse bin behind the old location. Using the "found footage" under what could be considered fair use guidelines they developed a mockumentary about the demise of the Winnipeg Jets. As these film makers were also considered by some relevant movers and shakers in the local indie film scene, their "documentary" got screenings at local and national film festivals, garnering them cult sensation status.

    Upon finding out about their success the TV stations lawyers served a cease and desist order barring them from any public presentation of what some could call a legitimate fair use of found/discarded media. The film makers went public with their legal troubles which only served to rally support for their cause, eventually the TV station ceded to a compromise allowing them to show their film in not for profit venues such as film festivals and free presentations.

    The movie is a fantastic example of fair use in my opinion. Look it up. "Death by Popcorn"

     

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  27.  
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    They have been sold, Feb 14th, 2008 @ 1:15pm

    Re: Of course he should be charged

    Maybe you should re-read the article:

    "BMG famously offers a CD and DVD 'club' that sends out new CDs and DVDs on a regular basis to subscribers. Sometimes those subscribers move and cannot be found or for whatever reason the discs are determined to be 'undeliverable.'"

    BMG got their profit.

     

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  28.  
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    Brent Bonn, Feb 14th, 2008 @ 1:18pm

    Re: Re: Of course he should be charged

    Then there was no lost revenue.

     

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  29.  
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    Rekrul, Feb 14th, 2008 @ 1:19pm

    Does anyone need any more proof that copyright law in the USA has run completely amuck?

    As for books; I used to hang out in a local book store and pester one of the employees (he was a Doctor Who fan like myself) and the subject once turned to unsold books. He mentioned them tearing off the covers and sending them back to the company. I commented that it was a waste they couldn't donate them some place, like a nursing home, or other non-profit organization that might not have the money to buy new books. He said that they did donate some of the books and magazines.

    I also used to have a relative who would get boxes of coverless books from someone they knew who worked at a bookstore. They would let friends and family go through them and pick out anything they wanted. A much better solution than simply throwing them away, in my opinion.

     

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    You never know, Feb 14th, 2008 @ 1:26pm

    It's clearly a case of "Legal Larceny". I’m glad a higher court saw the insanity of the situation and threw out the case.

     

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    DanC, Feb 14th, 2008 @ 2:09pm

    Re: Of course he should be charged

    "I work in retail. Goods that get written off and thrown in the bin cannot be used. Staff at the store cannot take them, even if they're perfectly usable. Anyone caught taking the products out of the bins get charged with shop-lifting."

    Since you work in retail, the company you work for more than likely has a policy that obligates you to destroy or otherwise render useless the written off items.

    The USPS has no obligation to BMG. BMG asked them to toss the CDs instead of sending the merchandise back. In other words, BMG relinquished their ownership of the merchandise and did nothing to ensure proper disposal. If the USPS was so inclined, they could have simply handed the discs out to their employees.

    It simply doesn't matter if BMG was paid for the discs or not, they ceded any rights they had to profit off of them when they neglected to properly dispose of them. They wanted to save a few bucks on return shipping by skipping out on doing things the right way. BMG was responsible for any losses that they suffered, or believe they suffered.

    The only thing the employee might be guilty of is violating USPS policy concerning going through their dumpster for personal reasons. I don't know if that's against the rules or not (I have a feeling it is), but that would be a USPS matter, and wouldn't concern BMG. And I highly doubt that it would be considered a serious violation, since the discs at that point did not belong to anyone.

     

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    DanC, Feb 14th, 2008 @ 2:10pm

    Re: Of course he should be charged

    "I work in retail. Goods that get written off and thrown in the bin cannot be used. Staff at the store cannot take them, even if they're perfectly usable. Anyone caught taking the products out of the bins get charged with shop-lifting."

    Since you work in retail, the company you work for more than likely has a policy that obligates you to destroy or otherwise render useless the written off items.

    The USPS has no obligation to BMG. BMG asked them to toss the CDs instead of sending the merchandise back. In other words, BMG relinquished their ownership of the merchandise and did nothing to ensure proper disposal. If the USPS was so inclined, they could have simply handed the discs out to their employees.

    It simply doesn't matter if BMG was paid for the discs or not, they ceded any rights they had to profit off of them when they neglected to properly dispose of them. They wanted to save a few bucks on return shipping by skipping out on doing things the right way. BMG was responsible for any losses that they suffered, or believe they suffered.

    The only thing the employee might be guilty of is violating USPS policy concerning going through their dumpster for personal reasons. I don't know if that's against the rules or not (I have a feeling it is), but that would be a USPS matter, and wouldn't concern BMG. And I highly doubt that it would be considered a serious violation, since the discs at that point did not belong to anyone.

     

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    Coises, Feb 14th, 2008 @ 2:11pm

    Infringement of right to control first sale of cop

    Note that the First Sale doctrine may not permit the postal worker's "resale" of these discs, because the initial "sale" by the record club was never completed. Accordingly, it can probably be argued that BMG still retains the right to control the first sale of those copies. Therein, I presume, lies the infringement.

     

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    DanC, Feb 14th, 2008 @ 2:13pm

    Re: Of course he should be charged

    "I work in retail. Goods that get written off and thrown in the bin cannot be used. Staff at the store cannot take them, even if they're perfectly usable. Anyone caught taking the products out of the bins get charged with shop-lifting."

    Since you work in retail, the company you work for more than likely has a policy that obligates you to destroy or otherwise render useless the written off items.

    The USPS has no obligation to BMG. BMG asked them to toss the CDs instead of sending the merchandise back. In other words, BMG relinquished their ownership of the merchandise and did nothing to ensure proper disposal. If the USPS was so inclined, they could have simply handed the discs out to their employees.

    It simply doesn't matter if BMG was paid for the discs or not, they ceded any rights they had to profit off of them when they neglected to properly dispose of them. They wanted to save a few bucks on return shipping by skipping out on doing things the right way. BMG was responsible for any losses that they suffered, or believe they suffered.

    The only thing the employee might be guilty of is violating USPS policy concerning going through their dumpster for personal reasons. I don't know if that's against the rules or not (I have a feeling it is), but that would be a USPS matter, and wouldn't concern BMG. And I highly doubt that it would be considered a serious violation, since the discs at that point did not belong to anyone.

    "When you throw something away, it shouldn't be picked up by anybody unless you give full consent."

    When you throw something away, you've given up your ownership of it. Period. If you don't want it falling into the wrong hands, it is your responsibility to shred or otherwise destroy the item.

     

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    Trevlac, Feb 14th, 2008 @ 3:06pm

    It's shit like this that makes me sick of living. Everytime a law is created we lose freedom. Land of the free my ass.

     

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    Nick (profile), Feb 14th, 2008 @ 3:22pm

    This just goes to show you that even Sony BMG thinks that CDs are so cheap to make they are worthless. That is, unless THEY are the ones making money from them and not someone else.

    So, they are stretching their view of copyright as the their exclusive right to profit from their own trash. If the CDs went to a plastics recycling center, what would they say? Someone would be making a profit from the plastic discs they made, but they would not be competing in the CD marketplace, so they would not care.

     

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    Anonymous Coward, Feb 14th, 2008 @ 4:09pm

    Worth less than return postage.

    Is this an admission by BMG that Physical Media worth less than return postage?

     

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    Michael McMannus, Feb 14th, 2008 @ 4:12pm

    Worth less than return postage?

    Is this an admission by BMG that Physical Media has a value less than return postage?

    The logic behind the theft from the trash bin makes sense, but that's driven the P&L statement, right?

     

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    LtJackboot, Feb 14th, 2008 @ 5:39pm

    Re: This Kinda Makes Sense

    What color is the sky in YOUR world? What 'ought to be' and what 'should be' are completely irrelevant- ANYONE has a right to something that has been discarded as the 18 previous posts have said.

     

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    LtJackboot, Feb 14th, 2008 @ 5:39pm

    Re: This Kinda Makes Sense

    What color is the sky in YOUR world? What 'ought to be' and what 'should be' are completely irrelevant- ANYONE has a right to something that has been discarded as the 18 previous posts have said.

     

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    LtJackboot, Feb 14th, 2008 @ 5:40pm

    Re: This Kinda Makes Sense

    What color is the sky in YOUR world? What 'ought to be' and what 'should be' are completely irrelevant- ANYONE has a right to something that has been discarded as the 18 previous posts have said.

     

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    LtJackboot, Feb 14th, 2008 @ 5:43pm

    Re: Re: This Kinda Makes Sense

    repeated posts an accident, sorry folks.

     

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    DanC, Feb 14th, 2008 @ 8:42pm

    Re: Infringement of right to control first sale of

    Sorry for the previous triple post...kept getting timeouts.

    "Note that the First Sale doctrine may not permit the postal worker's "resale" of these discs, because the initial "sale" by the record club was never completed."

    The first sale doctrine would not apply here. BMG attempted to send the purchased discs to the customers, but were unable to deliver them. BMG then asked the USPS to dispose of the discs, which they were under no obligation to do.

    There was no transfer of property, so the first sale doctrine would not apply. The property was abandoned by BMG because they didn't want to pay for the return of the discs.

     

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    Coises, Feb 14th, 2008 @ 9:01pm

    Re: Infringement of right to control first sale

    “the first sale doctrine would not apply” – DanC

    Which was my point... that the doctrine doesn't apply, because there was no “first sale” — until the postal worker sold them. The first sale doctrine is what permits the resale of a copyrighted work without the copyright holder's permision.

    The postal worker’s sale to local record shops was the “first sale,” and copyright law gives the copyright holder basic rights to control the first sale of any copy of a work to which copyright applies.

    I’m not endorsing this as good policy, but it seems like a plausible interpretation of copyright law.

     

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    DanC, Feb 15th, 2008 @ 7:07am

    Re: Re: Infringement of right to control first sal

    Ah...misunderstood your previous post. Sorry about that.

    I looked up some of the specifics of the first sale doctrine, and found where it was codified in US Copyright Law:

    "the owner of a particular copy or phonorecord lawfully made under this title, or any person authorized by such owner, is entitled, without the authority of the copyright owner, to sell or otherwise dispose of the possession of that copy or phonorecord."

    If the discs were owned by BMG, then they were also abandoned by BMG. A "first sale" is not required to sell the discs, only ownership of the discs.

     

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    Anonymous Coward, Feb 16th, 2008 @ 6:19pm

    The greed of the recording industry knows no bounds.

     

    reply to this | link to this | view in thread ]

  47.  
    identicon
    bln, Feb 17th, 2008 @ 8:38am

    What does this mean??

    Strange law!!!

     

    reply to this | link to this | view in thread ]

  48.  
    identicon
    Astrid, Apr 9th, 2008 @ 11:05am

    Re: death by popcorn

    I also heard a funny on CBC radio about one of your politicians who made fun of gays, and declaring they should all be killed, in a videotape dated back in the early 80's, and someone recently found the tape and now there's some brouhaha about this man's ability to lead, blah blah. Any updates on that story?

     

    reply to this | link to this | view in thread ]

  49.  
    identicon
    Richard Epler, Mar 11th, 2009 @ 5:14am

    Re: selling used CDs

    Come on Brent, spring for some new CDs sometime!:-)

     

    reply to this | link to this | view in thread ]


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