If You’re Thinking Of Selling Promos On eBay, You Might Want To Read This First

When Universal Music Group found that Roast Beast Music was selling promotional CDs on eBay, they sent takedown notices to the auction site, and the Roast Beast account was eventually suspended. In May, UMG filed a federal copyright-infringement suit against Roast Beast Music proprietor Troy Augusto because it was unhappy with the fact that Augusto was selling promotional CDs on eBay–the doled-out-by-the-record-company freebies that are seen as music writers’ trash, and music obsessives’ treasure. But earlier this week, the Electronic Frontier Foundation filed a countersuit against UMG–the organization’s second suit against the music behemoth in a month!–stating that Augusto had the right to sell those CDs under the “first sale” doctrine:

Copyright law’s “first sale” doctrine makes it clear that the owner of a CD is entitled to resell it without the permission of the copyright holder. Nevertheless, Universal demanded that eBay take down Augusto’s auctions, claiming that CDs marked as “promotional use only” remain the property of Universal and thus can never be resold.

“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.”

While I do think that the used-CD market is high on the list as far as next targets to stop the music biz’s sales from falling off completely (especially by the already-messing-with-record-stores Universal), I wonder about von Lohmann’s legal reasoning here. Does the “first sale” doctrine apply to items that are initially distributed for free? I’m not a lawyer, but I’d think that it wouldn’t. Of course, though, the fact that there is a market for these items–which often do have extra bits of music, or different artwork, that collectors drool over–should make Universal sit up and think that, hey, maybe there’s actually a market out there that’s wiling to pay more for music. (Or pay anything at all, really.)

And one more question: How was Augusto still on the promo lists for these labels–was he selling in-store play copies, or what? If anything, this whole case–and the thriving market for resold promos from people who are drowning in free music that they don’t want–is another sign that the way labels promote music to writers, DJs, and the like is woefully inefficient, and clearly in need of a major overhaul for more reasons than just saving the planet.

Online CD Seller Fights Universal’s Bogus Infringement Allegations [EFF]