the right of First Sale
godpt3
Posts: 1,020
First Sale: Why It Matters; Why We're Fighting for It
The "first sale" doctrine expresses one of the most
important limitations on the reach of copyright law. The
idea, set out in Section 109 of the Copyright Act, is
simple: once you've acquired a lawfully-made CD or book or
DVD, you can lend, sell, or give it away without having to
get permission from the copyright owner. In simpler terms,
"you bought it, you own it" (and because first sale also
applies to gifts, "they gave it to you, you own it" is also
true).
Seems obvious, right? After all, without the "first sale"
doctrine, libraries would be illegal, as would used
bookstores, used record stores, and video rental shops (and
their modern variants, like LaLa and other CD-swapping
communities).
But that hasn't stopped Universal Music Group. In May, UMG
sued Roast Beast Music for auctioning "promo CDs" on eBay,
CDs which Roast Beast Music had itself purchased from used
record stores around Los Angeles. Apparently, UMG has been
harassing a number of eBay sellers, sending bogus DMCA
takedown notices to eBay, getting auctions suspended and
accounts terminated.
Last week, EFF filed papers in court on behalf of Roast
Beast Music answering UMG's allegations and counter-suing
them for the bogus DMCA takedowns. The critical question is
whether UMG can trump first sale by printing "promotional
use only, not for resale" notices on the CDs that they
routinely give away to radio stations, journalists, and
tastemakers of all kinds.
If UMG is right, then copyright owners of all kinds can
strip away our first sale rights by putting these kinds of
"label licenses" on their wares. Next thing you know, CDs,
books, DVDs, and video games could be festooned with
"notices" that erode a customer's first sale, fair use, and
other rights.
Read Section 109 of the U.S. Copyright Act:
http://www.copyright.gov/title17/92chap1.html#109
See EFF's case page on UMG v. Augusto:
http://www.eff.org/legal/cases/umg_v_augusto/
The "first sale" doctrine expresses one of the most
important limitations on the reach of copyright law. The
idea, set out in Section 109 of the Copyright Act, is
simple: once you've acquired a lawfully-made CD or book or
DVD, you can lend, sell, or give it away without having to
get permission from the copyright owner. In simpler terms,
"you bought it, you own it" (and because first sale also
applies to gifts, "they gave it to you, you own it" is also
true).
Seems obvious, right? After all, without the "first sale"
doctrine, libraries would be illegal, as would used
bookstores, used record stores, and video rental shops (and
their modern variants, like LaLa and other CD-swapping
communities).
But that hasn't stopped Universal Music Group. In May, UMG
sued Roast Beast Music for auctioning "promo CDs" on eBay,
CDs which Roast Beast Music had itself purchased from used
record stores around Los Angeles. Apparently, UMG has been
harassing a number of eBay sellers, sending bogus DMCA
takedown notices to eBay, getting auctions suspended and
accounts terminated.
Last week, EFF filed papers in court on behalf of Roast
Beast Music answering UMG's allegations and counter-suing
them for the bogus DMCA takedowns. The critical question is
whether UMG can trump first sale by printing "promotional
use only, not for resale" notices on the CDs that they
routinely give away to radio stations, journalists, and
tastemakers of all kinds.
If UMG is right, then copyright owners of all kinds can
strip away our first sale rights by putting these kinds of
"label licenses" on their wares. Next thing you know, CDs,
books, DVDs, and video games could be festooned with
"notices" that erode a customer's first sale, fair use, and
other rights.
Read Section 109 of the U.S. Copyright Act:
http://www.copyright.gov/title17/92chap1.html#109
See EFF's case page on UMG v. Augusto:
http://www.eff.org/legal/cases/umg_v_augusto/
"If all those sweet, young things were laid end to end, I wouldn't be the least bit surprised."
—Dorothy Parker
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—Dorothy Parker
http://img210.imageshack.us/img210/6902/conspiracytheoriesxt6qt8.jpg
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Comments
On the subject, majors try all the bs they can hoping no one will notice or fight back (remember they took down half of the song tabs available on the web). And actually I don't know if anyone has the will/means to carry an action against them. I starting to think they spend more in their legal department then on the music they produce.
Yes, it's possible to do it. I ripped the audio from NIN's Beside you In Time to my iPod recently. Of course, doing so is a violation of federal law (you have to break the copy protection encryption crap to do the conversion).
You can get most of the software to do it at doom9.
—Dorothy Parker
http://img210.imageshack.us/img210/6902/conspiracytheoriesxt6qt8.jpg
i don't know how i feel about this.
i guess i understand where the precedent set could have an overbearing impact on "right of first sale",
but on the topic of "Promotional Use: Not For Resale" specifically, i have to say that this was historicaly for the protection of the ARTIST and the profits from album sales.
When a record company sends out promotional copies ... those have historically been ADVANCED PROMOTIONAL COPIES, just as they say on the label ...
I suppose after the album comes out it is somewhat of a moot point, but the label is there to discourage record shops from turning around and distributing\selling\retailing those CDs before the actual album is released ... thus undercutting the official CD release and giving bootleggers first dibs on a new album.
In fact, i used to get irritated when i saw record stores routinely selling these promo copies ...
... so just as devil's advocate,
why should record companies not have the right to protect their investments with a copyright and this pseudo-contractual clause on the CD which in effect says, "hey dude. we are letting you listen to this CD in advance so you can decide if you want to stock it in your store when it comes out, or play it on your radio station. however, since we are kind enough to let you hear it early, could you not be a jerk and sell it before we release it?"
I dunno.
You tell me.
I guess i'm up in the air.
If I opened it now would you not understand?
this isn't just about pre-release promos, though. For example, the ebay market for PJ christmas singles would evaporate over night (those all say "promo, not for resale," too. And a certain recent rarities leak wouldn't have been possible without First Sale.
Their primary goal is a direct attack on the sale of USED CDs, books and DVDs. They want physical media to be treated in the same way that computer downloads are: No resales, period. Once you've bought something in the download world, you as the consumer have no way to get your money back or resell your legally-purchased product. (This is why I refused to purchase PJ's download boots.)
It's all about greed.
—Dorothy Parker
http://img210.imageshack.us/img210/6902/conspiracytheoriesxt6qt8.jpg
RBM is buying music with the "intended" purpose of "redistribution" for profit. The redistribution method being used by RBM and others is not set up to effectuate a "personal collection" one-on-one type sell to someone's brother, or give to my best buddy as a gift type transaction. On the contrary, RBM is setup as a "business" to conduct "for profit" transactions with no profit or sales accounting being gained by the artists, labels or corporate sponsor. The redistribution of these CDs are set up to target a massive number of people via electronic medium of e-bay and utilizes postal or other land delivery mediums which results in a cumulative profits and benefits for RBM which could also constitute a case of wire and mail fraud.
In my opinion, I think sections 106 and 114, along with a couple others clearly support a case of copyright infringement when crossed-reference with your "first sale" impression of section 109.
How easy artists are condemned as greedy, yet people never think of themselves as leeches making an easy buck off other people's efforts.
How is this any different than me going to my local record shop and selling or trading in my used Madonna CD? Just putting a sticker on something saying "not for resale" doesn't cut it. If I have legally purchased an item, I should have the right to resell that item.
—Dorothy Parker
http://img210.imageshack.us/img210/6902/conspiracytheoriesxt6qt8.jpg
How much f-ing money do people really need these days anyway?
I think our society is going completely insane...
and reveling in it's loyalty. It's made by forming coalitions
over specific principles, goals, and policies.
http://i36.tinypic.com/66j31x.jpg
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( o.O)
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I believe these promotional CDs/LPs/DVDs they are refering to, are being sold long after the release of the album. Years after....in some cases.....decades.
I have never seen a "For Promotional Use Only"/ Promo Disc for sale before the official release of the album/cd. It is always a long time after the official release.
I suppose someone, some where in the USA or on this planet may be selling them before their official release date. But I've personally never seen that happen.
Your local record store "records those transactions" so that cd is credited with any accumulative profits, sales data is recorded and taxes are paid.
The "sale" of a product does not terminate copyright privileges that is why copyrights and patents are obtained.
It was Garth Brooks who 1993 criticized stores that sell used CDs, on the basis of "lost royalties". He also influenced and manipulated his record label (Capital Records) to refuse the shipping of his "In Pieces" album/CD to record/CD stores which sold used LPs/CDs. Capital ended up getting slapped with several anti-trust suits and eventually caved-in and shipped them to the stores (which also sold used product).
I happen to like a lot of Garth Brooks' music, but it's obvious the guy is a major dickhead.
I'm rather attached to a lot of his older songs. But you can bet any new material he may record and release, will only be bought by me......from a used CD bin. Fuck you Garth!
I got my ben harper BSOTG promo copy in a store a week before the release. Clearly marked PROMO NOT FOR RESALE.
See, there you go:D
I can understand the artists and labels bitching about that and trying to put an end to it. I can see their point of view on that.
But not on used product, in general.....like dickhead Brooks.