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?

Filed Under: cds, copyright, first sale, garbage
Companies: bmg


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  1. identicon
    Tamara Denshire, 14 Feb 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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