In a major pushback against music industry efforts to expand copyright control at the expense of consumers, a California judge has ruled that recipients of promotional CDs are free to do with them as they please. In other words, what would seem obvious to the layman, in this case also happens to be the law.
However, during a long-running legal battle that shut down an eBay seller, Universal Music Group had argued that it retained licensing rights and could prohibit such resale despite the fact that its promo CDs are distributed willy-nilly to thousands of music industry insiders who neither ask for them nor are not expected to return them.
Tuesday's ruling by U.S. District Court Judge S. James Otero is meaningful not merely because it protects an income stream for CD resellers, says the Electronic Frontier Foundation, but primarily because it affirms the so-called "first sale" doctrine. From the EFF's press release:
"This is a very important ruling for consumers, and not just those who buy or sell used CDs," said EFF Staff Attorney Corynne McSherry. "The right of first sale also protects libraries, used bookstores, and businesses that rent movies and videogames. This ruling affirms and protects the traditional balance between the rights of copyright owners and the rights of the public."
"It was clear to the court that these CDs were the property of (the eBay merchant), and therefore he had the right to resell them," said Joseph C. Gratz, attorney with Keker & Van Nest. "Copyright holders can't strip consumers of their first sale rights just by sticking a 'Not for Sale' label on a CD."
The bottom line from the judge:
"The promo CDs are unordered merchandise," Otero writes in his order (PDF). " ... By sending the promo CDs to music industry insiders, UMG transferred title to those insiders and the promo CDs are subject to the First Sale Doctrine."
When I first wrote about this issue two months ago, EFF intellectual property attorney Fred von Lohmann answered a number of questions regarding the nitty-gritty of the case in an interview you can read here.
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common sense
This is a good ruling. By a very logical and common sense judge. I wish all judges and their rulings could be as commendable.
end of cd-pros
labels will no longer send promotional CDs. they are currently transitioning to digital distribution. the US market is dominated by Play MPE who has new paid contracts with both UMG and EMI company-wide and contracts with sublabels of Warner and Sony/BMG as well as numerous independents. Play MPE is a product of Destiny Media Technologies in Vancouver.
Home Taping
Of course they'll keep sending CDs. They said home taping was killing music too, remember. I.E. radio would die because people recorded it. Instead, radio only became a bigger marketing mechanism. This isn't going to stop CD promos at all. The labels just need to suck it up.
You Must Work For Them
This has got to be an employee of Play MPE. As a radio programmer and consultant for one of the three largest radio companies, I can tell you first hand that NOBODY uses play mpe. they are known to take low quality mp3s and uncompress them and present them as perfect quality WAV files. They are unreliable as far as server up-time, and are generally considered a joke in the radio world. Promo cds will not stop coming, and Play MPE is not the answer. Good ruling by the way.
not employee or insider play mpe
private investor dsny.ob, a penny stock been good to me and which i believe has a great future.
i am surprised at your comments because the company claims to have made 90 mil deliveries of pre-release music to radio and other media as well as to labels internally with over 20k active users.
hundreds of very positive testimonials on website.
http://plaympe.com/v3/testimonials/testimonials.php
mp3s not accepted or used. they send in multiple formats: variable bit rate compressed file mpe not distinguishable from CD at much smaller file size, full quality uncompressed WAV suitable for HD, and AAC files.
what do you think of DMDS as an alternative digital distributor?
what format do you represent?
This is a given
With iTunes giving you a little sample of a song before you purchase it, and with internet radio stations providing full-length songs, it's totally a given to see the music labels detouring the promo-CD approach when marketing their bands.
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OliviaB.
San Francisco DUI lawyer
NFR software packages
Does this apply to "Not For Resale" software packages vendors give away or sell at a steep discount?
I think so. Coz i have
I think so. Coz i have talked to a friend and he mentioned about this as well. Also there are some whose trying to outwit by putting the CD's on their jewelry attache.
Implications for College Library Reserves
This ruling also supports the contention of some college libraries that instructors may donate promotional copies of texts that are sent them by publishers. Many publishers now put a sticker on promotional books saying they are for instructor evaluation only- but this has not been addressed in a court.
When I pass by the cd's on a
When I pass by the cd's on a store shelf I feel like I'm walking by a isle filled with promo's to a circus that no one wants to go to.
music