Posted on 06/13/2008 12:50:27 PM PDT by antiRepublicrat
San Francisco - 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.
"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 Mr. Augusto, 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."
Mr. Augusto's victory comes almost one hundred years to the day after the United States Supreme Court's June 1, 1908 decision in Bobbs-Merrill Co. v. Straus, 210 U.S. 339 (1908), established the first sale doctrine as a central part of American copyright law.
EFF has long fought efforts to override the first sale doctrine, arguing in 2004 that Lexmark should not be permitted to use a "label license" to prohibit the resale of laser printer toner cartridges.
For the full order:
http://www.eff.org/files/filenode/umg_v_augusto/LA07CV03106SJO-O.pdf
For more analysis:
http://www.eff.org/deeplinks/2008/06/liberation-day-promo-cds-victory-um...
Only The Government's rights have no limits. The sooner they learn that, the happier they will be.
It's about flippin' time.
I have seen ebay (years ago) shut down an auction of a 45 record with a picture sleeve that was “promotional only” from the 1950s.
If MGM wanted the record back, they certainly never made a request for it.
And those “promo only” CDs/records/tapes get into consumers hands a variety of ways including radio station call in contests.
Big Media would be happy if they could stamp out all used album sales. With digital downloads, they HAVE eradicated that side of competition (same format used music sales).
If any of these record companies were doing anything here to protect the interests of the writers or artists who created the music in the first place, I might have a different attitude. From what I understand, any of the writers looking for their agreed share of “mechanical reproduction royalties” might as well try to p$$$ up a rope.
All copyrights should only last as long as patents, 17 years from the date of first claim of copyright.
It's not just record companies. In 1790, copyright was 14 years.
Since then it's been extended to where it is, for any practical purpose, forever.
The point of the government granting a limited monopoly on a work is so that it will eventually enter the public domain where others can take that work and use it to create more works.
With perpetual copyright, that purpose has been ignored.
If copyright holders don't respect the Constitution and the purpose of copyright, why should anyone else respect it?
I think a songwriter is entitled to collect royalties for a term of life plus 50 years. I don’t see a problem with that. Some of them work long years before getting anything that produces some income. If you made a large investment that was successful enough to produce income for a generation or two of your heirs, should there be a time limit where it was all returned to the “public domain”? If I were a successful money-making songwriter, my strategy for my later years in life would be to give the “writer credits” to one of my kids. A person would do the same thing with any other financial asset. Why should a writer’s copyright be any different? What makes people think that someone should just be willing to walk away from “intellectual property” any more than you’d walk away from any other real property or financial asset? What if I said that the law should be that, a certain number of years after your death, anyone who wants can move in and take over the house you left your kids?
My problem is that the Constitution says it's supposed to be for a limited time for the author, and anything right up to the point before death is unlimited. My problem is that the authority is granted only as incentive for the author to produce more, and he won't be producing any more after he's dead. The Founders obviously didn't intend anything like the current state, as they set it at 14 years plus a 14 year renewal.
The most I can go with is 20 years plus a 20 year renewal, to compensate for longer life spans today. If the author dies during that then the compromise is that the current term will protect the work until it expires.
What if I said that the law should be that, a certain number of years after your death, anyone who wants can move in and take over the house you left your kids?
A house is real property. A copyright is a limited grant of monopoly for the express (and only) purpose of giving incentive to authors produce more in order to advance the arts and sciences.
I have some songs which have been copyrighted for 30 years and have never made me any money. Under your system, anyone who might happen to hear them and decide to put them out on a record could just do it for free. I guess it depends on whether the “intellectual property” is yours or somebody else’s. If somebody is selling a record or getting radio airplay, money is being made and there’s no reason the writer shouldn’t get his few pennies off each copy or play. The bulk of the money is going to the entity selling the actual copy or “mechanical reproduction”. And, as far as airplay or TV use, no radio or TV station is giving time to advertisers. They sell it to them. I guess they should be able to use my songs for free so that they can sell time to advertisers?
My system is a little more giving than the one invented by the Founders. It is not to give you a right forever. It is to give you a chance to make money off of it, a period that could be considered a good chunk of an adult's productive life. If you don't, then maybe that would be incentive to make something that will sell.
I guess they should be able to use my songs for free so that they can sell time to advertisers?
That's the definition of public domain. Disney made a huge chunk of money off the public domain.
Again, many writers spend a good part of their productive lives building a catalogue before getting that commercially successful song which can often be the thing that gives value to their old catalogue. As far as I’m concerned as a creator, screw the public domain. Disney made the money you referred to. Screw them, too.
If not for the eventual public domain, you wouldn't have been granted copyright in the first place. The end goal is public domain, where knowledge can be shared freely. Copyright is just incentive, grudgingly given by the Founders, to get works there. There wouldn't be any copyright if Jefferson had his way. Madison though it a necessary evil, although he was naive in thinking the will of the people could prevent its abuse.
BTW, I'm also a "creator."
Sorry, if I came off angry and aggressive, but it really annoys me for someone to not understand that Disney,to use your example, takes the intellectual property of another person, uses it without compensating that creator and still sells the movie tickets, the DVDs and the CDs for the same price. The point is that it is only a corporate giant like that making even greater profits by not paying for the property of the creator. The creator of the work doesn’t even circulate demos of their work without copyright protection and it can literally takes years before some of it might begin to earn royalties. And those copyrights are sometimes the only thing that writer has to hopefully, eventually, live on and pass on to their children.
Well, we respectfully disagree. I don’t see the “life plus 50 years” changing any time soon. And I WILL manipulate that, too, by starting to put some new copyrights in the names of my children as I get older.
Sorry, that’s just not the system our Founders put in place. Our current system was purchased by the likes of Disney.
I’m over it, OK? You see it your way, I’ll see it mine Best wishes
Because nowhere is it written that you are guaranteed an income.
The enitre copyright system, as outlined in the US Constitution, is there to promote the arts and sciences. To that end, you are given a temporary monopoly on your work. This is to discourage people from hoarding their works.
But the temporary monopoly isn't the primary point of copyright law. The primary point is to get people's works into the public domain so that others can take those works and use them to create more work.
What if I said that the law should be that, a certain number of years after your death, anyone who wants can move in and take over the house you left your kids?
There is a tremendous difference between real property and imaginary property. Those who try to make the two seem the same are gaming the system.
If I build a house, I have a house. Having it go into the public domain doesn't promote more house building.
The purpose of copyright is to encourage people to make works specifically to keep the flow of ideas coming. Locking up imaginary property stems that flow and violates the entire purpose of copyright.
As I said earlier, you’re free to your own opinions on the matter. A contentious issue and I’m tired of arguing about it. Best wishes.
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