Does Promotional Media Have a Leash?

By Brandon Lovested | in Copyright Law, Music | 23 Apr 2008 | No Comments

Image: CD on a leash

Universal Music Group (UMG) is suing Troy Augusto, owner of Roast Beast Music Collectables, who sells promotional CDs on eBay. UMG claims promo CDs are for personal use only and, according to the agreement contained thereon, cannot be redistributed —including being sold, given away, or even thrown away. The discs are usually sent out to music publications and radio stations. But as promotional materials, are these discs no different than brochures or product samples?

Naturally, the EFF is charging to the rescue. Earlier this month, they decided to defend Roast Beast, counter-suing UMG for abusing DMCA takedown notices. From the EFF rallying cry:

The “first sale” doctrine expresses one of the most important limitations on the reach of copyright law. The idea, set out in Section 109 of the Copyright Act, is simple: once you’ve acquired a lawfully-made CD or book or DVD, you can lend, sell, or give it away without having to get permission from the copyright owner. In simpler terms, “you bought it, you own it” (and because first sale also applies to gifts, “they gave it to you, you own it” is also true).

Seems obvious, right? After all, without the “first sale” doctrine, libraries would be illegal, as would used bookstores, used record stores, and video rental shops (and their modern variants, like LaLa and other CD-swapping communities).

But the copyright industries have never liked first sale, since it creates competition for their titles (you could borrow it from a friend, pick it up at a library, or buy it from a used book seller on Amazon).

On a separate front from the fight for Section 109, consider the possibility that these CDs were unsolicited – initially distributed by UMG as part of a marketing strategy. No contractual obligation can possibly exist without a meeting of the minds, and since the objects were not requested, this didn’t happen. In addition, there is no transfer of value for a consideration. (In fact, as the CDs were unsolicited, doesn’t this make them spam?)

There is no more a license here than if I delivered a 30-foot-tall robotic moose to your home and then started charging you $1,000 for the Mechanical Moose of the Month Club.

The license also states that the discs can be taken back by UMG at any time. So not only is UMG claiming the unsolicited promotional materials sent out are actually loaners, but now the hapless recipients must assume the burden of their storage.

Considering the various forms of spam I receive, all I can say is, “Stop sending me your darn discs or I’ll charge you a storage fee … and get that damn moose off my lawn!”