I love the way Universal Music Group is stubbornly trying to hold on to the revenue stream of “lawsuits against anyone who dare cross us.” It’s so cute, isn’t it? Well, those of you out there who have ever been the unwilling recipient of one of UMG’s shittier promo CDs may not think it’s so cute once you realize that the record company is now trying to go after anyone who’s not only sold one of said promos, but tried to be at least a little bit more ethical about flipping stuff they got for free by throwing the unwanted discs in the trash. Those CDs are property of Universal Music Group forever, dammit! And you can bet they’ll come around in 50 years to make sure that you still have that copy of Dreaming Out Loud that has “must be surrendered upon demand” stamped on its front, and if a thorough search of your place doesn’t turn up that CD, you will be in so much trouble.
This revelation came in a brief for summary judgment filed by UMG against Troy Augusto. Augusto (aka Roast Beast Music Collectibles, eBay handle roastbeastmusic) buys collectible promo CDs at used record stores around Los Angeles and resells them on eBay. UMG sued him last year, claiming that the “promotional use only” labels on the CDs mean that UMG owns them forever and that any resale infringes copyright. EFF took Augusto’s case to fight for the proposition that a copyright owner can’t take away a consumer’s first sale rights just by putting a label on a CD (after all, the Supreme Court first recognized the first sale doctrine when a book publisher tried the same thing with a label stating “may not be sold for less than one dollar,” and we’ve seen patent owners trying the same trick on printer cartridges). In other words, EFF believes that if you bought it, or if someone gave it to you, you own it.
UMG seems to think that the “promotional use only” label somehow gives it “eternal ownership” over the CD. While this might make sense to a goblin living in Harry Potter’s world, it’s not the law under the Copyright Act. According to the first sale doctrine, once a copyright owner has parted with ownership of a CD, book, or DVD, whether by sale, gift, or other disposition, they may not control further dispositions of that particular copy (including throwing it away). It’s thanks to the first sale doctrine that libraries can lend books, video rental stores can rent DVDs, and you can give a CD to a friend for their birthday. It’s also the reason you can throw away any CD that you own.
You thought that front-cover stamp was as meaningless as those tags on mattresses, didn’t you? Hey, I did too. Especially given that judging by the racks at the Princeton Record Exchange, UMG has been good at overpressing promos of lousy albums and not so good at policing the resale racks.