EFF Explains Why You Should Be Allowed To Sell Promo CDs

from the first-sale-first-sale-first-sale dept

Last summer, a district court ruled that selling promo CDs is perfectly legal. This was an important ruling, because it reinforced the right of first sale -- which has been a part of copyright law for ages -- and it made it clear that companies couldn't wipe out the limits of copyright law simply by declaring them void. The case involved a guy, Troy Augusto, who was selling CDs on eBay. Many of the CDs were "promo" CDs that had been sent to reviewers and radio stations -- stamped with the words to the effect of "Promo: Not for Resale." I've got a few such CDs in my own collection.

Universal Music Group claimed that these CDs remained its property because of that stamp. However, that goes against the entire first sale doctrine concept -- which has always allowed individuals to resell copyrighted products that they possess. Universal's claim was that the stamp meant that it continued to own the CD, even though it never asked for such CDs back. If allowed, this would effectively let any company create their own copyright laws by simply stamping the content with the rules. So, forget the current, already ridiculous, term for copyright. New authors or musicians could just stamp every product with "Property of the content creator" and you would never actually own the product.

Luckily the court disagreed... but Universal has appealed, and the RIAA has filed a brief siding with UMG as well. The EFF has now filed its own brief, noting the ridiculous consequences of any ruling where Universal wins. Allowing Universal to win would effectively mean that all of the extremely important (and already diminished) limits found on copyright today no longer apply. That would be a travesty and go against everything that copyright was originally designed to represent.

Filed Under: promotional cds
Companies: eff, riaa, universal music

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  1. identicon
    Yakko Warner, 29 Jan 2009 @ 2:28pm

    Re: No Sale

    When you are given something is there the same legal transfer of ownership as when you are sold something?

    It's been a long time, and most of the links I'm trying to dig up are long dead, but you might remember a company at the turn of the millennium called Digital Convergence that came up with a device called a "CueCat". It was a handheld barcode scanner that, in theory, would interact with software that, when you scanned a bar code, would direct you to a web page with product information on what you scanned. They gave away the scanners in copies of Wired magazine and through Radio Shack, free. Their business model was marketing. Each scan on a scanner was sent to their servers with a unique identifier, not just to do the barcode look-up, but so they could track what you were scanning and sell your "scan-stream data" to ad agencies.

    The software was Windows only, so when Linux geeks got their hands on them, of course the first thing they did was try to get this gadget working in Linux. To do that, they had to hack the encryption that the scanner was using to send data to the computer. It was very weak encryption, so it was broken very quickly.

    When DC learned that its scanners were being used without the software that harvested and reported the scans, they tried to say people couldn't do that with the hardware (despite the fact that it was given to them), saying it really was the property of DC. It didn't fly, one of the arguments being that an unsolicited item sent in the mail is legally considered a gift and property of the recipient.

    old /. thread

    (Which reminds me, I still have a dozen or so of these things in my closet somewhere. :D )

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