Comments on: “Damn The Man!” The Ability To Sell Second-Hand CDs

By: Joe Gratz

Joe Gratz — Mon, 03 Nov 2008 05:28:58 +0000

Thanks — great post!

Joe Gratz
(one of Troy Augusto’s lawyers)

By: Lyn

Lyn — Thu, 23 Oct 2008 01:54:24 +0000

Would UMG continue to claim perpetual ownership of all promo copies if one day (by chance) all people possessing copies decided to mail them back to the distributor – to arrive in the same mail??

By: Matt

Matt — Tue, 21 Oct 2008 20:44:05 +0000

“Corroborated,” “Collaborated,” “Conspired…” you get the idea. Though sorry Anna, I am in fact not Japanese. Just foolish, apparently.

Having said that, you are correct that “collusion” was what I was going for. Though, D is also right that “illegal collusion” is a tautology.

Irregardless, sorry for any confusion my grammatical insufficiencies may have caused.
(joke.)

Money Man – Steve is correct that one could argue for the principle of first sale protecting someone who sold an mp3, provided they had erased the “original” from their computer upon selling… though I believe that argument would ultimately fail.

There is some question whether digital copies kept on a hard drive or flash-drive supported device such as an iPod meet the “fixed” requirement as defined by 17 U.S.C. § 101, as follows:

A work is “fixed” in a tangible medium of expression when its embodiment in a copy or phonorecord, by or under the authority of the author, is sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration. A work consisting of sounds, images, or both, that are being transmitted, is “fixed” for purposes of this title if a fixation of the work is being made simultaneously with its transmission.

In short, it’d be tough to argue that the court should consider a copy on your hard drive “fixed,” as defined above. Without the “fixed” status, the principle of first sale would not apply, per 17 U.S.C. § 109(a).

[The Duke Law & Technology Review discusses this further here: http://www.law.duke.edu/journals/dltr/articles/2001dltr0018.html ]

Then again, as with Steve, I’m not in a position to give legal advice. But that doesn’t stop me from arguing!

By: solicitor bulgaria

solicitor bulgaria — Sun, 19 Oct 2008 23:12:50 +0000

Once again, the music industry overestimated the level of control they should be allowed to maintain over their copyrighted works. Just as when Sony invaded its consumers privacy by embedding software in CDs and when the five largest music distribution companies illegally corroborated to fix the price of CDs, the music industry has again violated the law. The United States District Court for the Central District of California concluded, via summary judgment, that the purported EULA included by UMG did not create a license, nor does it allow UMG to retain any control over the promotional CD. UMG gave away these CDs, and those who receive them are free to dispose of them as they see fit. Therefore, the court found, as the legal owner of the CDs in question, Mr. Augusto and Roast Beast Music broke no laws in selling these recordings, and may continue to do so.

At least we can still sell our old CDs… Right?

By: steve

steve — Sun, 19 Oct 2008 21:18:02 +0000

“conspired,” even. I’m pretty sure that price-fixing between horizontal competitors would fit the definition of a Sherman Act illegal conspiracy in the US.

Money Man: I would argue that re-selling mp3 files is a legal extension of the first-sale doctrine, as long as the “original” copy is destroyed by the seller after the sale. I would bet that the record labels could try to distinguish the general rule by pointing to the ephemeral nature of an electronic file, as compared to the physical nature of, e.g. a CD or a book.

I’d side with you, but I ain’t even a lawyer yet, much less a federal judge.

By: money man

money man — Sun, 19 Oct 2008 20:25:18 +0000

What will RIAA think when people start offering up older or unwanted albums/songs in MP3 format on the EBay? As long as the files were purchased legally in the first place and are no longer in there possession after the transaction. Would this be a way to legally re-sell unwanted files?

By: D.

D. — Sun, 19 Oct 2008 13:31:36 +0000

The word “collude” already implies illegality. “Illegal collusion” is a tautology. You only need to say that they colluded.

By: Anna

Anna — Sun, 19 Oct 2008 04:07:53 +0000

I laughed at the same thing, Visitor.

No doubt he was trying to hit the word “collaborated,” but even that would be wrong in this context. Collaboration isn’t a crime, “Ebony and Ivory” notwithstanding.

The correct right term is “colluded.” (See the FTC article to which Matt’s “illegally collaborated” link points, in fact.)

By: Visitor

Visitor — Sun, 19 Oct 2008 01:17:56 +0000

Great article… but “illegally corroborated” made me chuckle because you clearly meant to type “illegally collaborated”.

By: One Stop Shop

One Stop Shop — Sat, 18 Oct 2008 02:25:37 +0000

man…after all these years, the penny counters at the labels still won’t stop – you’d think after seeing their profits plunge, their reputations damaged BEYOND repair, their sales disappear, and the landscape of music retailers…wait – WHAT music retailers? oh yeah – WALMART; iTunes, that’s where i want to buy cool…that they would realize they’ve completely and UTTERLY killed the goose. Speaking strictly as someone who used to have THOUSANDS of these type of cd’s (back in the day, your fave person in the world was your rep – and the back of their trunk where the BOXES of stuff was) – shit, u didn’t CARE what it was – u just knew you could offload it for $. And i personally took a 6 month sabbatical selling loads at the height of the market (i was getting $6-$8 PER DISC) when i jumped ship. Now? It’s all about the collectors; And cd’s? Dime a pound. Music stores? Thankfully back in hands of those who LOVE music, and don’t see it as just an ACCESSORY for your phone. Kinda better now, actually. And youth relationship to music has changed (too many options, too few real talented musicians); but knowing that their is a groundswell of record players being sold nationwide gives me hope (lotta that going around these days; maybe Hopey can bring some sense back to the RIAA – NOT!). In the end, the pendulum will swing back, i think, and music will once again be more than just a way to sell product (or just be product).

Man – i sound OLD. Rotten kids! Get off my zen stone garden!

btw – mp3 BLOWS and anyone who says otherwise has their foot in their ear..

By: My Name Is

My Name Is — Fri, 17 Oct 2008 16:14:54 +0000

It seems to be on a par with the practice of selling ARCs, or advance reading copies – many of them state “not for sale” but when you receive one in the mail, unsolicited, and decide, hey, I’ve got ten boxes of unsolicited proofs and I need to pay my PG&E bill, it’s pretty easy to assume a person will head over to their nearest bookstore and sell them. I’ve yet to see a bookstore that wouldn’t buy them – and there’s a thriving collector’s market for them, same as with the promo CDs. Most collectors assume they are up for sale the same way any new or used book is. Some publishers mark them, or number them, so that when they see one for sale, they know who they sold it to, and can track them that way…but it does seem that if you saw one in a bookstore, why not buy it? If you see a used CD and it’s one you want, why not buy it? The law of supply and demand, well, it generally works.