Intellectual Property Law

Music Label's Copyright Argument is Rubbish

By Ryan Singel, Kevin Poulsen, Sarah Lai Stirland, Kim Zetter, and David Kravets

Tossing it like a Frisbee is OK. The kids, cat and dog scratching the hell out of it is just fine.

But throwing away that CD is copyright infringement.

According to UMG Recordings, that's true insofar as the label's promotional CDs are concerned: those thousands of unaccounted for discs the label mails out each year to reviewers, radio stations and others.

The record label says throwing away such CDs is a no-no because it claims it has an eternal right of ownership to them.

The label's attorney taking that position is Russell Frackman, and he's no stranger to copyright law. Frackman was one of the lead lawyers who brought down Napster.

Threat Level called him Friday at his Los Angeles office, and got "No reply." (Taking Frackman's argument to its logical conclusion, Threat Level just opened itself up to a lawsuit for writing the name of a Beatles' song without permission. And deleting this post from your RSS inbox might also get you hauled into court.)

Frackman made the "throwing away" argument in a court filing this week in a federal lawsuit against a California man accused of copyright violations for selling UMG's promotional labels on eBay and elsewhere.

The label claims Troy Augusto has no right to profit from the CDs because they are labeled as promotional materials not for resale. Frackman claims that, for the defendant to have the right to sell the CDs, he must "show the existence of a first sale for that particular UMG promo CD."

That, according to the label, means Augusto "must trace the chain of title of each specific copy of the UMG promo CDs he auctioned to the original alleged transfer of ownership."

What the label is saying is that, for Augusto to claim a defense that he has a right to sell the CDs, he must demonstrate how he obtained the discs by providing "the requisite proof of a first sale." UMG says he could not have obtained them legitimately because the promotional material is not for sale.

Augusto had testified that if a CD he was auctioning didn't sell, he would give it away or throw it into the garbage. "Both are unauthorized distributions," Frackman wrote in a court brief.

The Electronic Frontier Foundation is defending the accused pirate.

"According to the first sale doctrine, once a copyright owner has parted with ownership of a CD, book, or DVD, whether by sale, gift, or other disposition, they may not control further dispositions of that particular copy (including throwing it away)," EFF attorney Fred von Lohmann wrote on his blog. "It's thanks to the first sale doctrine that libraries can lend books, video rental stores can rent DVDs, and you can give a CD to a friend for their birthday. It's also the reason you can throw away any CD that you own."

A hearing is set for May 5 in U.S. District Court in Los Angeles.

Photo flattop341

See Also:

• Lawsuit Claim: Students' Lecture Notes Infringe on Professor's ...
• Google Unveils YouTube Copyright Filter to Mixed Reviews
• Courts Split over Legal Fees in Copyright Infringement Lawsuits
• RIAA Believes MP3s Are A Crime: Why This Matters -- Updated
• Big, Small Media Create Colluding Copyright Cartel
• Egypt Conjuring Copyright Pyramid Scheme

Full post as published by Threat Level on April 11, 2008 (boomark / email).