Idolator
When Universal Music Group found that Roast Beast Music was selling promotional CDs on eBay, they sent takedown notices to the auction site, and the Roast Beast account was eventually suspended. In May, UMG filed a federal copyright-infringement suit against Roast Beast Music proprietor Troy Augusto because it was unhappy with the fact that Augusto was selling promotional CDs on eBay—the doled-out-by-the-record-company freebies that are seen as music writers' trash, and music obsessives' treasure. But earlier this week, the Electronic Frontier Foundation filed a countersuit against UMG—the organization's second suit against the music behemoth in a month!—stating that Augusto had the right to sell those CDs under the "first sale" doctrine:
Copyright law's "first sale" doctrine makes it clear that the owner of a CD is entitled to resell it without the permission of the copyright holder. Nevertheless, Universal demanded that eBay take down Augusto's auctions, claiming that CDs marked as "promotional use only" remain the property of Universal and thus can never be resold.
"When a consumer buys a CD, he gets certain rights, including the right to resell it. Universal is mistaken if it thinks that it can trump these rights simply by putting a label on a CD," said Fred von Lohmann, EFF Senior Intellectual Property Attorney. "Universal is trying to unilaterally rewrite copyright law to the detriment of Augusto's legitimate business and the public. Unless this effort is blocked, it could jeopardize not only sales of used CDs, but also libraries, used bookstores, and businesses that rent movies and video games."
While I do think that the used-CD market is high on the list as far as next targets to stop the music biz's sales from falling off completely (especially by the already-messing-with-record-stores Universal), I wonder about von Lohmann's legal reasoning here. Does the "first sale" doctrine apply to items that are initially distributed for free? I'm not a lawyer, but I'd think that it wouldn't. Of course, though, the fact that there is a market for these items—which often do have extra bits of music, or different artwork, that collectors drool over—should make Universal sit up and think that, hey, maybe there's actually a market out there that's wiling to pay more for music. (Or pay anything at all, really.)
And one more question: How was Augusto still on the promo lists for these labels—was he selling in-store play copies, or what? If anything, this whole case—and the thriving market for resold promos from people who are drowning in free music that they don't want—is another sign that the way labels promote music to writers, DJs, and the like is woefully inefficient, and clearly in need of a major overhaul for more reasons than just saving the planet.
Online CD Seller Fights Universal's Bogus Infringement Allegations [EFF]
Comments
roastbeastmusic was always the first place i looked for prices, but i was surprised how he was able to sell from one account for so long ... uhm "friends of mine" would usually be able to sell about 100 items then get ebay VERO noticed into temp. suspension then permanent suspension, then have to start over ... the VERO notice is very random, some stuff like Prince, Madonna and Jeff Buckley comes down almost instantly
Stores that carry used CDs generally don't get promos (unless their new CD sales are the largest volume in their market and/or account for a substantial majority of their square footage).
Wherehouse got cut off from promos for a few months back when they started selling used CDs (I was a manager there back then).
Label reps, music reviewers, radio station employees, and managers of record stores that do get promos supplement their income by selling the promos to the used stores.
I'm pretty sure the EFF is on solid ground here. Wherehouse threatened to sue (and may have followed through, I don't recall) when the labels started punishing them (including the promos, but also by refusing any defective returns from Wherehouse, cancelling coop ad programs, etc) on similar principle.
most of the promo stuff that sells on ebay is promo singles and ep's not full albums , full "albums" go for about the same/less on ebay than secondspin or your local music store
so what he's selling is a version of the product that's not even comparably available in stores so that's why the collectors value + probably why the labels are right, but i understand his frustration because he may sell 100 items from a UMG artist without incident but for whatever reason 1 specific UMG artist will result in a violation notice and ebay cancelling all his auctions (including those non-UMG titles since ebay doesnt bother researching anything they just suspend an account and make the user do all the gruntwork)
my guess is now that more ebay stuff comes up in google searches, somebody at the label got tired of seeing his name come up (he lists about 1000 items at a time)
I've bought stuff from Roast Beast; most of his items tend to be radio-only promo singles and the like. I just assume he had an in with one or more DJs and/or music writers and was acting as a front for them, splitting the profits.
It's actually a much larger issue that extends to computer software, which is why I assume the EFF got involved. Software companies claim they can make users parties to legal agreements by dint of the user clicking a button or opening an envelope, which is pretty questionable; a company can enforce whatever terms it wants with its customers, but it seems questionable to bring in the courts to enforce what's essentially an internal policy. Software companies want their product to be not bought but licensed, which in legal terms means that it's a temporary thing, but if everything they sell is technically a license, are they a rental business? It comes down to the software companies and record labels saying that language put on a product is legally enforcable as a contractual agreement, and the EFF saying that it's not. They're probably right. Content providers need to find a more legitimate way to do this sort of thing, if they want to keep doing it.
Oh, it's also notable that you become a party to the agreement after you receive the product, which is obviously contrary to logical business practices (Blockbuster wouldn't hand you a video before you sign up for a card) and therefore throws serious doubt on the idea that it's a license rather than a purchase (or gift, in the case of promo CDs).
Is this selling promos before the release date of the recording?
Because I can see how that's a problem for record companies, but selling a promo copy of a CD after the release, why is it any concern of the record company?
For Roast Beast, it's almost always selling older promos. I've bought several promo albums from the mid- to late-90s from them.
I'm an attorney at EFF, representing Roast Beast. I'd like to answer a couple of the questions raised in the story.
First, the "first sale" doctrine applies (contrary to its common name) to items that the copyright owner gives away, as well as those that it sells. There is a case in New York from 1984 that makes this clear, where Disney gave away a copy of a film, then tried to stop the recipient from reselling it. Disney lost.
Second, the CDs that UMG sued Roast Beast for auctioning on eBay were items that he purchased himself from other sellers and was re-selling. He did not receive them from UMG.
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