Wednesday, August 15, 2007

UMG Sues eBay Reseller of Promo CD's for Copyright Infringement;; Defendant Argues "First Sale" Doctrine under 17 USC 109

I know this is a bit off topic, but occasionally I like to point other ways in which "big music" is seeking to distort copyright law, and this is yet another one of them:

UMG Recordings, part of the Universal music group, one of the "Big 4" record companies, has brought suit against an eBay reseller of Promo CD's (pdf)*, in UMB v. Augusto, in California. The defendant, whose legal team includes the Electronic Frontier Foundation, is fighting back (pdf)*, claiming that his sales of the CD's are lawful under the "first sale" doctrine under Section 109 of the Copyright Act (17 USC 109), and counterclaiming against UMG for sending out false notices under the DMCA (Copyright Act Section 512).

* Document published online at Internet Law & Regulation

Commentary & discussion:

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Keywords: digital copyright online law legal download upload peer to peer p2p file sharing filesharing music movies indie independent label freeculture creative commons pop/rock artists riaa independent mp3 cd favorite songs

5 comments:

AMD FanBoi said...

This one was was only a matter of time. If they can get First Sale shot down, then that's the end of used CD sales everywhere. The problem with the CD is that it's actually too good. Unlike vinyl that wore out and needed to be replaced, I still have CDs from 1984 that play as good as ever. This is clearly a threat to an industry that thrives on reselling you the same music time after time.

Knowing that it's the RIAA here, I'm sure they'd like to claim that, because this is a "license", that the Doctrine of First Sale doesn't apply. Also they certainly must be claiming that this promotes piracy (since everything promotes piracy) since a user can buy a CD, make a copy, and then sell the used CD, if this idea goes where I expect they hope to push it.

I'm convinced this is the opening shot on a new front for them. But ever since SCOTUS shot down the restrictions against manufacturers enforcing minimum pricing, who knows what is still valid any longer.

Part of me would love to see them win that argument just so I could claim perpetual license to every piece of music I've ever bought, and are therefore entitled to have it in every form available, and at cost replacement of lost or damaged discs.

But overall I'm wanting them to lose Big Time. So Big that they'll never try this farce again.

Ray Beckerman said...

They're not going to get 17 USC 109 shot down.

AMD FanBoi said...

As an addendum: where the record companies are really Bastards about this, and to which they readily admit in their complaint, the Promo versions, artwork, packaging, and other items relating to these releases may contain song versions and artwork never made available to the public for purchase. In short, there's a Tease of playing music on the radio and at parties hosted by recipients of such record company largess that is simply not available otherwise. To a true collector or fan of an artist or group, these things are gold. And for the record companies to simply GIVE THEM AWAY to some privileged people, while denying them to the fans who are THE ONES WHO PAY all the bills, is unconscionable!

But then again, I've yet to hear anyone assert that the RIAA actually has a conscience.

As to injury to UMG's "goodwill and reputation", UMG is the one who had damaged that.

And I'd like to know what the losses are, which is always a major component of any suit. Are they claiming that they lost sales of the released single or album because someone bought the Promo version? Hardly likely. A true fan wants EVERY version. I suspect all of their damage here is completely self-inflicted, since how is this different than a radio station playing these songs to promote an album or artist?

If this actually makes it to trial, it could prove very interesting. I do wonder what would happen if they actually got the trial by jury that they have demanded? Is there even an impartial jury possible any longer when it comes to Big Music?

I notice, these lawyers really love to throw around that "vicarious infringement" argument. If you've somehow enjoyed this, you're guilty. Next thing I know it will be vicarious infringement to even read Ray's blog.

It is clearly time for the entire record company structure to come down and be replaced by something else to distribute music and compensate artists fairly.

Mike said...

AMD FanBoi: You mean like what is talked about in this article?

Boston Globe article on self-promoting musicians.

Wave of the future stuff there!

AMD FanBoi said...

Yes, Mike,

I mean exactly that -- and many other things like that. Once records and radio play were scarce. Each required a huge investment in order have happen. And studio time cost thousands of dollars per hour.

This is no longer the case. Computers and the Internet have really opened up the possibility of music production, promotion, and sales to every artist -- especially those not handpicked by the record companies as stars over many other equally deserving bands.

The record companies will still insist that you need them, and only them, to make your fortune in music. But it's a lie, and the veil is slipping further off every day.