In this podcast, the Electronic Frontier Foundation's Fred Von Lohmann discusses the UMG v. Augusto case that the EFF recently picked up. Universal Music Group is suing Augusto for selling promotional CDs on eBay. With the help of the EFF, this one-man "mom and pop" business is countersuing UMG for infringing upon his right to sell the CDs.
UMG has contacted eBay to stop many of Augusto's auctions (ebay ID: RoastBeastMusic), leading him to fill out the necessary paperwork to declare his activity legal as is required by the Digital Millenium Copyright Act. The DMCA allots 10 days for a response from Universal, but Universal has not responded on countless occasions. Until this suit they allowed the auctions to be eventually re-listed, but these interruptions cost Augusto dearly, as they led to lost sales, a less trustworthy appearance to potential buyers (who may conclude they are buying something illegally after watching an auction stopped), and even to temporary suspensions of his eBay account. As these eBay sales are Augusto's sole source of income, this threatened to leave him without a job.
Universal makes the argument that their promotional CDs are, as is printed on their face, "not for resale." But what right do they have to make this statement in the first place? Is the recipient receiving it with the understanding that it is a loan? And, if so, are they expecting it back? Will they send a courier around? Are they expecting it to be destroyed? Has the recipient signed a contract binding him to this agreement?
UMG asserts that mailing it out is not a sale, but rather a license and that such promo CDs remain the property of UMG. Augusto and the EFF see it differently.
"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."
What if one of us goes out and buys a promo CD (which most of us know can be found locally in just about any used music store)? Does this mean every one of these stores is breaking the law? And after that sale is made, is the new owner supposed to recognize that UMG in fact still remains the only rightful owner? This seems to be asking us to accept UMG as Gods over their music, creating it only to serve them and their own financial interests. Intellectual property may be incredibly important to us, but most of us aren't willing to accept such restrictive terms and we certainly never agreed to them.
The old adage rings in my ear: "Possession is 9/10s of the law." Mailing a CD without an agreement constitutes a zero dollar sale. Since Augusto buys most of his CDs in used music stores around LA, it seems to me they are undoubtedly
his to sell.
The podcast will bore you unless you're interested in copyright law, but I found it interesting. If you're really dorky, check out the
legal documents.
