http://www.phphosts.org/2011/01/court-rules-that-its-legal-to-sell-promotional-cds/
----- Court Rules That Its Legal To Sell Promotional CDs Last year, we had noted that the 9th Circuit appeals court was set to hear three separate cases, all revolving around the first sale doctrine, which allows you to resell copyrighted works that you possess. The first ruling of the three, back in September, was bad news: overruling a good district court ruling, in Vernor v. Autodesk, saying that anyone could effectively wipe out your first sale rights by simply putting a license on it. The second ruling, in MDY vs. Blizzard, was more of a mixed bag. It accepted the basics of Vernor but said that just because you violate a license, it doesnt automatically mean you violate the copyright. Now, the ruling in the third case, UMG vs. Augusto, has come out and it looks pretty good. It upholds the first sale rights of people who get promotional CDs (pdf of the ruling, which is also embedded below). Basically, the court seems to agree with the lower courts ruling, which suggested that being able to overrule first sale rights with a couple of sentences stamped on a CD, which the labels clearly never intended to get back, would undermine the entire principle of the first sale doctrine (though, it did so for different reasons). So, how did the court square this ruling with its own decision in Vernor, which essentially said something different? It basically comes down to the fact that Universal Music gave out these CDs without expecting them back or without getting the original recipient to agree to anything specific. That is, the text stamped on the CD doesnt count as a true license agreement. But all the crap included with Autodesk software does count as a license agreement (rather than a true transfer of ownership): It is one thing to say, as the statement does, that acceptance of the CD constitutes an agreement to a license and its restrictions, but it is quite another to maintain that acceptance may be assumed when the recipient makes no response at all. This record reflects no responses. Even when the evidence is viewed in the light most favorable to UMG, it does not show that any recipients agreed to enter into a license agreement with UMG when they received the CDs. Because the record here is devoid of any indication that the recipients agreed to a license, there is no evidence to support a conclusion that licenses were established under the terms of the promotional statement. Accordingly, we conclude that UMGs transfer of possession to the recipients, without meaningful control or even knowledge of the status of the CDs after shipment, accomplished a transfer of title. The main difference between the lower court ruling and this new ruling is that the appeals court focused on the lack of any actual agreement in the license, while the lower court focused on the lack of expected return of the promotional CD. Not surprisingly, I think the court got this right but since I also believe that the earlier Vernor ruling was very, very wrong, its not surprising that I think this ruling does a nifty little tap dance to pretend that this ruling and the Vernor ruling are consistent. It basically says that it all depends on the means of distribution, in that recipients of promo CDs did not ask for them, while purchasers of software did. But that seems to be besides the point and somewhat unrelated. The same issue that seems to drive this ruling for Augusto should apply to Vernor as well. The court notes that theres no acceptance of a license and you cant assume acceptance via no response. And yet, thats how most such software licenses work as well. While Im happy about this particular ruling, it still seems to conflict with itself and I would imagine we havent heard the last of these three first sale cases... ----- http://www.auctionbytes.com/cab/cab/abn/y11/m01/i06/s01 ----- eBay Seller Wins First-Doctrine Appeal, Allowed to Sell Promo CDs By Ina Steiner AuctionBytes.com January 06, 2011 Reading AuctionBytes: eBay Seller Wins First-Doctrine Appeal, Allowed to Sell Promo CDs Share An appeals court ruled that an online seller who obtained UMG promo CDs could sell them on eBay, but said the ruling does not change its recent decision in the Vernor v Autodesk case in which it ruled Timothy Vernor could not sell Autodesk software on eBay. Both cases tested the First Sale doctrine, which holds that the owner of a particular copy of a copyrighted work has the right to resell that work without permission of the copyright owner. This week's ruling stemmed from a copyright infringement lawsuit filed by UMG Recordings against Troy Augusto. The defendant, Augusto, obtained promotional CDs that UMG used for marketing purposes and later sold them on eBay, an act that UMG contended infringed its exclusive right to distribute the discs. Augusto asserted that UMG's initial distribution of the discs effected a transfer of ownership of the discs to the recipients, rendering the discs subject to the First Sale doctrine. UMG, who used the CDs solely for marketing purposes, sent the promo CDs unsolicited to individuals such as music critics and radio disc jockeys. UMG argued that the statements on the discs and the circumstances of their distribution granted only a license to each recipient, not a transfer of ownership (or "sale") of the copy. However, the U.S. Appeals Court for the Ninth Circuit concluded that UMG did not succeed in creating a license, and that the mailing indeed did effect a sale of the discs to the recipients for purposes of the First Sale doctrine. It affirmed the order of the district court in favor of the defendant. You may quote up to 50 words of any article on the condition that you attribute the article to AuctionBytes.com and either link to the original article or to www.AuctionBytes.com. All other use is prohibited. Email this story to a friend. " regards, alexander. -- http://gng.z505.com/index.htm (GNG is a derecursive recursive derecursion which pwns GNU since it can be infinitely looped as GNGNGNGNG...NGNGNG... and can be said backwards too, whereas GNU cannot.) _______________________________________________ gnu-misc-discuss mailing list gnu-misc-discuss@gnu.org http://lists.gnu.org/mailman/listinfo/gnu-misc-discuss