In a further attempt to alienate their customers, the music industry has sued a man for selling promotional labels online. Honestly I can understand the idea of being up in arms over selling items that say specifically, "Not for Resale." The part where it gets stupid is here:
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New Copyright Argument
- Thread starter Tim
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Aptivus
Gawd
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Well I guess from now on, when you give someone a cd or you receive a cd (for free) from someone, you need to generate a sales receipt for your records. LOL. This is so amazingly stupid.
Nenu
[H]ardened
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To quote starwars
"the more the empire tightens their grasp, the more systems will slip through their fingers"
"the more the empire tightens their grasp, the more systems will slip through their fingers"
You've got to be fucking kidding me! I'm no lawyer, so I"m sure I'm wrong, but IMO, UMG should have to show that it is likely that said disk was stolen before the court bothers to hear the case. There are exceptions, but for the most part, people who buy Promos are buying them as a collectible (or in some cases because the song is only available as a promo), not because it's a cheap way to get music. Unless the band is unknown, you'll pay MORE for an album or single if it's labeled as a Promo.
Seriously, are they going after every record store that sells Promos by the Beatles, Stones, Pink Floyd, or Nirvana? For that matter, if you take it to it's logical conclusion, shouldn't every sale of every CD require that same documentation? After all, couldn't that Missy Elliott CD have been stolen directly from the label? I realize that there's a difference between Promos and retail CDs....but the Not For Resale stamp is meant to prevent the retail sale of said music, not to prevent collectors from buying and selling those CDs, 45s and LPs.
This is just another bone headed move by an industry that has a product I love, but is clueless about the fact that public perception matters.
Nevertheless, I must add that those who use their heavy handed tactics to steal music are just as bad as the labels themselves.
Seriously, are they going after every record store that sells Promos by the Beatles, Stones, Pink Floyd, or Nirvana? For that matter, if you take it to it's logical conclusion, shouldn't every sale of every CD require that same documentation? After all, couldn't that Missy Elliott CD have been stolen directly from the label? I realize that there's a difference between Promos and retail CDs....but the Not For Resale stamp is meant to prevent the retail sale of said music, not to prevent collectors from buying and selling those CDs, 45s and LPs.
This is just another bone headed move by an industry that has a product I love, but is clueless about the fact that public perception matters.
Nevertheless, I must add that those who use their heavy handed tactics to steal music are just as bad as the labels themselves.
"Augusto had testified that if a CD he was auctioning didn't sell, he would give it away or throw it into the garbage. "Both are unauthorized distributions," Frackman wrote in a court brief."
uh, i take this to mean that even throwing a cd in the garbage is considered 'unauthorized distribution?'
if this is true, i think ill just go out to the shed and blow my head off right now....
uh, i take this to mean that even throwing a cd in the garbage is considered 'unauthorized distribution?'
if this is true, i think ill just go out to the shed and blow my head off right now....
xX_Jack_Carver_Xx
2[H]4U
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I will never understand that thinking. If you have a serious enough problem with something to be blowing heads off.... WHY NOT THIER HEADS instead of yours?
I assure you, if I'm on the jury, the glove wont fit and I will acquit.
I assure you, if I'm on the jury, the glove wont fit and I will acquit.
SamuraiInBlack
Supreme [H]ardness
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Time to bust out the wood chipper. Hell, you can't even throw away your own purchased music?
Guess I better not purchase a CD at all from now on. If I want to get rid of it because it sucks, it will be impossible without breaking "the law".
Guess I better not purchase a CD at all from now on. If I want to get rid of it because it sucks, it will be impossible without breaking "the law".
RIAA is getting desperate, the swedes have ruled against it again, they have the lawsuit thats making them reveal how they came to a false positive on one woman who was harassed, and Demonoid.com is back online to boot, reversing hundreds upon hundreds of thousands in court costs...
fabulous ... now leave the music patrons alone and let them chose what they'll pay for and enjoy the free distribution of lesser artists, based solely on merit..
I mean seriously, who doesnt have .mp3s? .. and I spent over $50 on CDs this last week after my discovery of a new artist via free .mp3 sent by a colleague .. artist is Israel Kamakawiwo'ole ... Hawaiian music of the non-tourist variety... Track 1 and 15 on CD "Facing Future" are amazing, and I would have NEVER found this guy..
fabulous ... now leave the music patrons alone and let them chose what they'll pay for and enjoy the free distribution of lesser artists, based solely on merit..
I mean seriously, who doesnt have .mp3s? .. and I spent over $50 on CDs this last week after my discovery of a new artist via free .mp3 sent by a colleague .. artist is Israel Kamakawiwo'ole ... Hawaiian music of the non-tourist variety... Track 1 and 15 on CD "Facing Future" are amazing, and I would have NEVER found this guy..
More importantly, the "Not For Resale" sticker is absolutely meaningless.
UMG mails out the CDs unsolicited with these stickers on them. They are giving them away. If you are sent mail unsolicited then it becomes your property, and as such, you have a right to sell it as per first-sale doctrine.
I know I've all but stopped buying music.
I have my Siruis radio (I know they bit a bit of $$ from that) and I will get a tune or 2 off of Amazon a month, but that's it.
Wither and DIE, RIAA!
You killed music with Britney Spears and all the other crap you try and force us to buy!
I have my Siruis radio (I know they bit a bit of $$ from that) and I will get a tune or 2 off of Amazon a month, but that's it.
Wither and DIE, RIAA!
You killed music with Britney Spears and all the other crap you try and force us to buy!
It's probably not a sticker. If it was, the guy could just sell it without mentioning it was a promo....more than likely it's printed on the CD and perhaps on the booklet (assuming it came with one, which they often do not). but I'm just being anal. I hope the case gets tossed out and they're forced to pay the defendants legal fees.
I know I've all but stopped buying music.
I have my Siruis radio (I know they bit a bit of $$ from that) and I will get a tune or 2 off of Amazon a month, but that's it.
Wither and DIE, RIAA!
You killed music with Britney Spears and all the other crap you try and force us to buy!
I on the other hand in awash in CD's. I bought 30 or so a few weeks ago for around 130 or 140 bucks. Bmg Music club is a wonderful thing. Now I just need to find the time to listen to all of those albums.
dandragonrage
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The guy is within his legal rights to resell the CDs. It's called the first sale doctrine and it came about when a retailer was trying to sell books at a price point at which the manufacturer said it was not legal to sell them at. The retailer won. See Wikipedia.
How the CD is labeled with "Not for resale" doesn't matter.
Since the recipient of the CD never agreed to any terms when ownership was transferred to him (via the unsolicited mailing), he is not obliged to follow any instructions that may be included with the CD.
Furthermore, as I mentioned before, first-sale doctrine protects the right of the consumer to resell a copyrighted work, regardless of any labeling that supposedly that right.
LOL, this piece of news was totally priceless. It's right up there with this one:
http://blog.wired.com/27bstroke6/2008/04/feds-charge-por.html
http://blog.wired.com/27bstroke6/2008/04/feds-charge-por.html
I'm not going to be able to sleep tonight for what I'm about to do, but....
I don't know if things have changed since the last time a promo found it's way into my hands, but at that point all of them that I saw were clearly labeled (they came in a cardboard sleeve specifically printed with the terms on it) that they were the property of the record company. Based on these old promos there were no ownership rights transferred to the store they shipped the promo to and they could demand the disc back at any time. It wasn't as simple as a "not for redistribution" label, they were essentially loaning their cd to the record store to promote it. I don't know if that is the way things are these days, but back then it was really clear who it belonged to. And selling somebody else's property generally isn't legal. Does it constitute "illegal distribution"? That ain't for me to say.
If he did have rights to the disc than throwing it away would, in theory, be within his rights, just like giving a cd as a gift. If he didn't have rights then one could argue that it is an illegal distribution. Seems stupid to me, but, hey, I'm a keyboard jockey, not a lawyer.
Eugh. I feel dirty actually saying something that weighs in favor of the labels.
I don't know if things have changed since the last time a promo found it's way into my hands, but at that point all of them that I saw were clearly labeled (they came in a cardboard sleeve specifically printed with the terms on it) that they were the property of the record company. Based on these old promos there were no ownership rights transferred to the store they shipped the promo to and they could demand the disc back at any time. It wasn't as simple as a "not for redistribution" label, they were essentially loaning their cd to the record store to promote it. I don't know if that is the way things are these days, but back then it was really clear who it belonged to. And selling somebody else's property generally isn't legal. Does it constitute "illegal distribution"? That ain't for me to say.
If he did have rights to the disc than throwing it away would, in theory, be within his rights, just like giving a cd as a gift. If he didn't have rights then one could argue that it is an illegal distribution. Seems stupid to me, but, hey, I'm a keyboard jockey, not a lawyer.
Eugh. I feel dirty actually saying something that weighs in favor of the labels.
watertown28
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you know that stuns me.... i read that and I am shocked that this case even got that far. So....
Bingo.
In your example the record company probably does retain ownership, making resale prohibited; however in the case in question, the record company has mailed out these promo CDs unsolicited, which constitutes a transfer of ownership (IANAL).
They can write whatever they want on the CD, but the fact remains that they gave it away and no longer have control over what people are going to do with it.
Well duh. I said I was just being anal, because saying it's a sticker on the disk isn't how most promos are labeled.
I'm confused with how you can argue that they have rights in the case that normyk wrote of and not in this case. Promos are always sent (almost always unsolicited) to radio stations, newspapers and magazines.
The guy who's being sued wasn't the original receiver.
I'm not disagreeing that the lawsuit is frivolous, but I see no difference between the 2 cases. Distribution of promotional materials are largely unchanged....well with the possible exception that they're not longer slipping some cocaine along with a few bills to play the song.
I'm not sure the details of the case that normyk described, but it sounded like there was an agreement made that the promo CDs were only being lent before they were sent. If that's not the case, then I agree, they are essentially equivalent.
They've always been considered the property of the labels (if you go by what is on the media itself), but rarely, if ever, is that media collected.
IMO, the main reason for that was to prevent people from taking a promo and selling at a retail store. As a rule, people buy promos because they're collectible or have something on them that's not available elsewhere.
That might be true if you go by whatever terms are on the CD; however as I've been saying, that's not what the law is concerning unsolicited mailings (as is this particular case).
http://www.usps.com/postalinspectors/fraud/merch.htmUnited States Postal Service said:
See Title 39, United States Code, Section 3009 if you want the legalese.
I wonder if they(the music people, not this poor soul) could be held for Mail fraud for trying to tell people they are under some ToS which is obviously prohibitied by US law.
If UMG were trying to claim they still own the merchandise then there's definitely an argument to be made for that. Along these lines:
It's not clear to me what UMG is arguing, since first-sale doctrine clearly allows the product to be resold if ownership is transfered, and the unsolicited mailing clearly constitutes a transfer of ownership.
USPS said:
It's not clear to me what UMG is arguing, since first-sale doctrine clearly allows the product to be resold if ownership is transfered, and the unsolicited mailing clearly constitutes a transfer of ownership.
Then I'll repeat, there's no meaningful difference between what the person described and what happens today.
Ok I'm not really sure what you're referring to.
In the case that normyk described with actual stores receiving promotional copies, it's possible that these are solicited mailings with some terms that were agreed upon. normyk didn't state whether this was the case. The legal similarities of this example versus the one in the article hinge on this "detail". They could be the same, or they could be different.
It's not clear to me that we're actually disagreeing on anything.
In the case that normyk described with actual stores receiving promotional copies, it's possible that these are solicited mailings with some terms that were agreed upon. normyk didn't state whether this was the case. The legal similarities of this example versus the one in the article hinge on this "detail". They could be the same, or they could be different.
It's not clear to me that we're actually disagreeing on anything.
Ok, but who's to say that this guys stuff didn't originally come from an arrangement like you're speaking of? I have no idea how often record stores get promo copies. Most go to radio, and it's certainly possible that stations have signed something agreeing not to abide by the verbiage that is on the promos.
Regardless, I think it's a dumb case, even if they have a legal leg to stand on. Promos have been up for sale for decades. For the labels to suddenly have an interest in the resale of these CD's smacks of desperation. And once again, manages to make them look even more petty than they already seemed when suing students and grandmothers.
Regardless, I think it's a dumb case, even if they have a legal leg to stand on. Promos have been up for sale for decades. For the labels to suddenly have an interest in the resale of these CD's smacks of desperation. And once again, manages to make them look even more petty than they already seemed when suing students and grandmothers.
The EFF says so in their summary judgement brief filed on behalf of Troy Augusto.
Summary Judgement Brief said:
It's actually a pretty interested (and comprehensible!) read.
I understand the argument, and that's why the labels are saying, show us where each CD came from to prove it, because if he can't do that, then he cannot meet that standard. Maybe everyone of his came from people that signed agreements not to resell any promotional material sent to them.
Let's be honest about this: labels don't throw a dart in the phone book and send out promos to that person. They send them to reviewers, labels and perhaps some record stores. With the possible exception of the record stores, the promos sent out are needed as a part of the receivers business. Radio stations don't buy records and neither do reviewers. And when they don't receive a promo for some band, you've got an unhappy PD or reviewer.
If the guy can't show where they came from, then it's likely that at least some of the items he sells fall under the exception that you sited earlier.
I personally think that promos are collectibles and UMG should back off, but your last post makes me think the request was logical and not without merit, which is more than I can say when I first posted on here several days ago.
I'm curious, have you actually read any of the relevant documents? UMG is not asking Troy Augusto to show where the CDs came from. They are claiming that he is infringing on their copyright.
The intent of UMG in sending out the promo CDs is irrelevant. These promo CDs were received through unsolicited mailings, and the law is explicitly clear about this unconditionally constituting a transfer of ownership. UMG does not dispute that they were unsolicited mailings.
If further evidence were even needed to show that ownership had transferred, it is also pointed out that UMG has abandoned the CDs under California law, and as such ownership is transferred (had it not already via the unsolicited mailing).
The case for abandonment is clear-cut. If you read the summary judgment brief you'll see that both the non-possession and intent-to-abandon requirements are met. Non-possession is satisfied by Troy Augusto having possession of the CDs; intent-to-abandon is obvious in that UMG stated they never attempt to collect promo CDs.
This is all covered in the summary judgement brief. UMG really has basis to claim copyright infringement.
The intent of UMG in sending out the promo CDs is irrelevant. These promo CDs were received through unsolicited mailings, and the law is explicitly clear about this unconditionally constituting a transfer of ownership. UMG does not dispute that they were unsolicited mailings.
If further evidence were even needed to show that ownership had transferred, it is also pointed out that UMG has abandoned the CDs under California law, and as such ownership is transferred (had it not already via the unsolicited mailing).
The case for abandonment is clear-cut. If you read the summary judgment brief you'll see that both the non-possession and intent-to-abandon requirements are met. Non-possession is satisfied by Troy Augusto having possession of the CDs; intent-to-abandon is obvious in that UMG stated they never attempt to collect promo CDs.
This is all covered in the summary judgement brief. UMG really has basis to claim copyright infringement.
Master Blaster
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This is awesome!