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.
Both parties filed their motions for summary judgment in federal court a few days ago, and a ruling could come in early May.
UMG v. Augusto [Electronic Frontier Foundation]
(Photo: Getty)
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Hrm. At the college newspaper, we got hundreds of free CD’s. We held contests regularly to see who could most creatively destroy them. I wonder if that violates the rules…
@rmz: Why you gotta be mean to the sun?
Help me make a wikipedia article on this lawsuit:
en:Universal_Music_Group_v._Augusto
In case anyone cares, the way the world of music contracts normally work, these promo CDs come out of the artist’s pocket. In a standard contract, there’s a part about promotion costs usually held against royalties. That includes advertising, video shoots, promo shwag and sending out promo CDs to radio, reviewers and tastemakers. The way it used to work, not sure if it still does, even record club sales were counted as promo.
So anyway, UMG isn’t really out anything over this except a theoretical lost sale.
And as many others have noted, ain’t no way this is ever going to stop. I hosted a radio show for about three years and would get, on average, 30-40 discs in the mail each week. I’ve been off the air for about a year and a half and I’ve only recently finally cleared all these promos out of the house. There are simply too many of these things going to so many people, it’s going to be impossible to police.
Near the end, I did notice many people sending out CD-R copies of albums or just the CD with a card listing songs rather than retail art. If they want to make these things pretty much worthless, that’s the way to do it as no one is going to pay for a burn or a disc without art. Strangely enough, it was the indie labels mostly that did things this way. 95% of what I got from the big four was same as retail with maybe a sticker or punch hole in the bar code.
@ndonahue:
Unauthorized services as a gift makes me picture Universal as a squeegee bum yelling “I WASHED YOUR WINDSHIELD NOW YOU OWE ME TWO DOLLARS GIMME MY MONEY.”
I have a few promo CDs that I got used at a local store that say not to resell or give away or anything on them, so I wondered why the store bothered to mess with it, then I remembered I 99% of my music is on indie labels that probably don’t care.
I had a promotional tape with a bunch of piano music on it once. It was my favorite tape. I accidentally left it in a pocket and it went through the washing machine. It ruined the tape and washed off the writing that would have helped me track down the individual tracks. I have it in a box somewhere in the hope that someday I’ll be able to run the warped sounds through enough filters that I can identify the performers. I guess it’s a good thing I didn’t throw it out. Wouldn’t want to illegally transfer it…
@hi: a shiny metal disc with more information than they want to sell you in any format that is freely usable, which also doubles as a physical backup of that data.
Sadly, if they were ejected to the sun, new ones would take their places. We’d still lose. Personally, I don’t see how they are going to get anywhere with this…but, they can afford the lawyers.
If the record companies are the rightful owners of these should not the person storing their property be entitled to compensation for storage and safe keeping? I have lots of these dating back in some cases 30 years. I accept payment in the form of cash (USD or Euros). My wife runs a music magazine and she gets mail totes of these things every week. They are not sent out for “free” out of the goodness of these companies hearts. They are sent with the hope of getting press or sales from of them.
Hey, UMG I have a 45 rpm record from the 1970′s labeled “promotional only”. Care to come sue for it?
Instead of record stores, radio stations and the general public stockpiling this CD-waste, we should have the government build a giant repository.
They could put it in a giant tunnel in Nevada. There it would reside there forever, safe from the eBay, Russian MP3 gangs and rogue record store employees. They could call it Yucca Mountain.
THAT would solve it!
@spinachdip:
Yeah, that’s neo-liberalism (aka corporate socialism), not capitalism.
It’s stuff like this that’s a public relations nightmare and it’s a complete lose-lose for the record company, nothing could could come of it. They don’t want the disks back, they just want to control anyone who has them.
@CMU_Bueller: I used to be a buyer for a major retailer and much of my collection is promo cds i got for free from UMG, Warner, EMI, SonyBMG, etc. I can keep them or give them away, but I can’t sell them. Same went fro free tickets to shows and other swag I got by the truckload. Plus, I would deem it highly unethical to seek gain out of something like that.
An update: on June 10th, Augusto won the case. Essentially, the judge ruled that the CDs sent by UMG were indeed to be considered gifts, and that the first sale doctrine gave him the right to sell them if he wished.