eBay Promo CD Seller Fights UMG's Infringement Allegations

[mandy]

When Universal Music Group found that Roast Beast Music was selling promotional CDs on eBay, they sent takedown notices to the auction site, and the Roast Beast account was eventually suspended. In May, UMG filed a federal copyright-infringement suit against Roast Beast Music proprietor Troy Augusto because it was unhappy with the fact that Augusto was selling promotional CDs on eBay--the doled-out-by-the-record-company freebies that are seen as music writers' trash, and music obsessives' treasure. But earlier this week, the Electronic Frontier Foundation filed a countersuit against UMG--the organization's second suit against the music behemoth in a month!--stating that Augusto had the right to sell those CDs under the "first sale" doctrine...

full article: http://idolator.com/tunes/lawsuits/if-yo...287302.php

An eBay seller is taking on Universal Music Group (UMG) in court after the record industry giant targeted his online music sales with false claims of copyright infringement.

The Electronic Frontier Foundation (EFF) and the San Francisco law firm of Keker & Van Nest LLP are representing Troy Augusto, whose online auctions included sales of promotional CDs distributed by Universal. Augusto does business on eBay under the name Roast Beast Music and specializes in sales of rare and collectible music.

Copyright law's "first sale" doctrine makes it clear that the owner of a CD is entitled to resell it without the permission of the copyright holder. Nevertheless, Universal demanded that eBay take down Augusto's auctions, claiming that CDs marked as "promotional use only" remain the property of Universal and thus can never be resold...

full announcement: http://www.eff.org/news/archives/2007_08.php#005393

[mandy]

More analysis:

The Electronic Frontier Foundation has taken up the case of a California man who has been sued by Universal Music Group for selling promotional CDs. Like other record labels, UMG distributes free CDs to radio stations and music reviewers in the hopes of drumming up publicity. The CDs come stamped with the label "promotional copy, not for sale." Based on this notice and the fact that the copies were given away rather than sold, the labels argue that these "promo CDs" remain the property of the labels and are only leased to recipients for their personal use...

The fundamental issue in the case is the First Sale Doctrine, which says that when a copyright holder sells a copy of a CD, the new owner of the CD is entitled to give or sell that copy to someone else without getting the copyright holder's permission. This is the principle that makes libraries and used book stores possible. It was first articulated by the Supreme Court in 1908 and has since been codified into statute...

full article: http://arstechnica.com/news.ars/post/200...eulas.html

[mandy]

Update:

Electronic Frontier Foundation (EFF) and San Francisco law firm Keker & Van Nest filed briefs in federal court Monday on behalf of eBay seller Troy Augusto, defending his right to resell promotional CDs ("promo" CDs) that he buys from secondhand stores in the Los Angeles area...

full article: http://www.infozine.com/news/stories/op/.../sid/27847

A copy of Monday's court filing (.pdf format): 
http://www.eff.org/files/filenode/umg_v_...JBrief.pdf

[mandy]

Update: eBay seller wins, judge affirms right to resell promo CDs

A federal judge has shot down bogus copyright infringement allegations from Universal Music Group (UMG), affirming an eBay seller's right to resell promotional CDs that he buys from secondhand stores.

Troy Augusto, represented by the Electronic Frontier Foundation (EFF) and law firm Keker & Van Nest, was sued by UMG last year in the United States District Court for the Central District of California for 26 auction listings involving promo CDs. At issue was whether the "promotional use only, not for sale" labels on those CDs could trump Augusto's right to resell materials that he owns, guaranteed by copyright law's "first sale" doctrine.

In dismissing UMG's lawsuit late Tuesday, U.S. District Court Judge S. James Otero ruled that the promo CDs are gifts distributed by UMG, as they are mailed free and unsolicited to thousands of people without any expectation or intention of their return. The first sale doctrine says that once the copyright owner sells or gives away a copy of a CD, DVD, or book, the recipient is entitled to resell that copy without further permission...

full announcement: http://www.eff.org/press/archives/2008/06/11