All promotional CDs are forever the property of Universal Music Group and giving or throwing them away are “unauthorized distributions,” according to a brief filed by UMG. In a lawsuit filed in federal court, UMG claims that ownership rights to promotional CDs, typically sent to DJs, reviewers, and others in the music business to generate hype for new releases, are expressly retained by the label. The Electronic Frontier Foundation is taking up the fight against this absurd position in UMG v. Augusto.
The defendant, Troy Augusto, is an eBay seller who sells promotional CDs that he finds at used record stores. UMG, a member of the reigning Worst Company in America, sued, claiming that Augusto was distributing their material in violation of UMG’s copyright, and that any transfer, even to a garbage can, is unauthorized. August and EFF have counterclaimed that UMG is attempting to restrict Augusto’s “first sale” rights. In their brief, they argue that the first sale doctrine allows Augusto, as owner of the CDs, the right to sell or transfer them as he sees fit. In establishing that UMG’s distribution of promotional CDs is an effective transfer of ownership, EFF points out that UMG sends the CDs unsolicited and does not keep records of who receives the discs, nor do they typically attempt to have the CDs returned or warn recipients that they might try to:
In short, those to whom UMG mails “promo CDs” enjoy all the principal hallmarks of ownership: their possession is unlimited in time, they are under no obligation to return the CDs, and there is no penalty to them should the CDs be lost, damaged or destroyed. UMG, for its part, also behaves as though it has parted with ownership: it does not keep records regarding the whereabouts of the CDs, nor has it ever sought their return from the recipients.