EFF Wins Landmark Ruling Freeing Promo CDs for Resale

https://www.eff.org/press/archives/2011/01/04-0

by ek • 16 years ago

58 10 16 years ago

terinjokes• 16 years ago

Does this have any broader ramifications in terms on computer software and/or games?

jbri2• 16 years ago

Not anything significant, I don't think. This particular case says nothing about technological protection measures, which is the real issue with regards to resale.

URSpider942• 16 years ago

Pretty much no. Quoting from the opinion:

"We have recognized, however, that not every transfer of possession of a copy transfers title. Particularly with regard to computer software, we have recognized that copyright owners may create licensing arrangements so that users acquire only a license to use the particular copy of software and do not acquire title that permits further transfer or sale of that copy without the permission of the copyright owner."

Essentially, the judges argue that, because these CD's are mailed to DJ's and music critics without any reasonable attempt to establish a contract, then the recipients are free to do whatever they want with the copies. They explicitly contrast that with software licensing, where the consumer obtained the license through a voluntary transaction.

jayzee• 16 years ago

Qs1 :What about when authors give out free pdf copies of books in advance requesting that they not be circulated?

Qs 2: Does that mean the UMG has lost copyright to songs on those CDs? Can the dude now make copies of the songs and sell them? I dont understand how the medium gets ties to the copyright

jbri2• 16 years ago

This is primarily about what's known as "first-sale doctrine". Basically, if the copyright owner gives you a legitimate copy of a work, you are free to pass on or resell that particular copy without needing to ask permission from the copyright owner.

So no, you're not allowed to make copies of the disks and sell them, but if you buy a stack of 50 promo disks second-hand, you can resell all 50 of them. I'm not sure how it works with purely digital goods, but presumably (IANAL) you'd be in the clear if you deleted "your" copy when you passed it on to someone else.

jrockway• 16 years ago

Qs1: What about when authors give out free pdf copies of books in advance requesting that they not be circulated?

To legally enforce this condition, they need to have a contract signed. No contract, no free copy.

URSpider942• 16 years ago

On Q2, "copyright", quite literally, means having the right to control the making of copies. In other words, the person who holds copyright dictates how and when new copies of the work can be created.

However, the first sale doctrine essentially says that once any copies leave the control of the copyright holder (ie they are sold or given away), then ownership -of those copies- becomes a legally protected property right that can be further transferred without consulting with the copyright holder (by transferring the physical object holding the data).

What makes a given copy of the CD legitimate is that it was made with permission of the copyright holder. Any future owners can buy, sell or give away that CD as they desire, but they can't make further copies without express permission.

This is, in part, why the EFF and others get so worked up over EULA's, because they are an attempt by content creators to keep all of their rights under copyright while not being subject to first sale.

rhizome• 16 years ago

Q2: No. The mechanical royalties have already been paid based on the number of CDs pressed, which is a known quantity and likely negotiated in bulk anyway. This doesn't change (and neither does copyright ownership) when someone receives a CD, nor when that person sells it, which is what was decided here.

Making copies would imply further use of the mechanical right mentioned above, and is then illegal due to non-payment of further royalties based on the number of further copies made. The mechanical right is compulsory with a rate set by law, and so in exchange for the other powers of copyright going to the owner(s), any of us little people are allowed to pay money to start our own K-Tel empire. Currently this is ~US$0.02/min (~$1.50 per CD).

cduan• 16 years ago

There was another recent case that touched on the related question of whether violation of a license agreement attached to software could give rise to copyright infringement:

http://www.eff.org/deeplinks/2010/12/mixed-ninth-circuit-rul...

Interestingly, the same three Ninth Circuit judges heard both this case and the OP case.

EDIT: Also, there was the Vernor v. Autodesk case a few months ago:

http://en.wikipedia.org/wiki/Vernor_v._Autodesk,_Inc.

Again, the exact same three judges! They seem quite interested in these first-sale/license issues (or else they wouldn't have published all three opinions).

apedley• 16 years ago

Common sense prevails, for once. :)

EFF Wins Landmark Ruling Freeing Promo CDs for Resale

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