For the DJs and music collectors out there

[greatbear]

A large number of people on my friends list are serious music fans, musicians and DJs (why is that?). A court case I've been following might be of interest to some of you. A judge has determined that a record label can not stop the sale of "promotional" recorded works (CDs, vinyl, etc) by the people who originally received those items. The labels defense had been the promo materials, being given away rather than sold, were 'licensed' to the recipients and that those recipients did not actually 'own' the items. By attempting to sell the materials, the seller was committing 'copyright infringement' by violating the license agreement, and the labels halted the sales and auctions by invoking the beloved DMCA.

Music companies have long tried to stop the sale of used records and CDs, but time and time again were thwarted by something known as the "First Sale Doctrine" which basically states that once an item is purchased, one has the right to re-sell that item. Unless a contract was signed stating otherwise, there is nothing the primary seller can do to stop subsequent sales of a particular item. Promotional materials have long held a high collector value and can bring big bucks for sellers of those sorts of items. While a music company might snarl at the prospect of someone re-selling a CD that they had purchased because the sale brought in no more profit for the company, these companies have historically been in a tizzy over the market for promo material given away at their own cost. By waving the DMCA around these companies figured they had found a convenient tool to work their bidding. Instead, a level-headed judge proved that the promo stuff fell under the rights of first sale despite being free, and the similar area of law that states a party can't hand out unsolicited items to people then expecting payment of some sort. The CDs were considered 'gifts' and once out of their hands, the labels had no more say in how they were to be used.

Wonderful! Finally here is a definitive, pro-consumer ruling that has some pretty big implications for the future and helps protect individuals and organizations from draconian abuse from corporations bent on having final say on what we as consumers can or cannot do with products we buy, even after the sale.

I know a couple of my dear readers had encountered this sort of issue when trying to sell on eBay some promo stuff only to have it continually shut down. Maybe now you can tell 'em to go pound sand. And now your friendly local used record store can breathe a bit easier too.

Comments

[greatbearmd.livejournal.com]

You were the first one I thought of when I read the ruling. Best of luck in getting what ya are due for.

[furr-a-bruin.livejournal.com]

Maybe the shithead will get so mad he'll just spontaneously combust into an evil smelling cloud of smoke.

OK, not likely - but I can imagine eBay auctions of the "forbidden" material with links to - or outright copies of - this decision as part of the description. ;)

[djmadadam.livejournal.com]

I wonder, then, if that could be applied to taking music that you purchased and compiling it into a continuous-mix CD, which you, in turn, then sell?

[greatbearmd.livejournal.com]

In this case, you'd be creating a derivative work, which would not fall under this case. Only way you can do this is to sell your comp as well as all the originating materials together as a set. This only applies to the original work which is first purchased by the end user then sold to somebody else in whole.

Likewise, it is not legal for you to buy a CD, copy it or rip it into your music library then sell the original CD still keeping your copies. While the sale of the original is well and good, you now possess the illegal copy(s). Not that I would tell anyone though.

[budmassey.livejournal.com]

There is another problem with selling mix discs. It's simple. A copyright is the right to copy. The copyright holder has it. You don't. So even though you could sell your copy, you can't make and sell others, even if they are "modified."

Now, if you DID license the work for redistribution, you could hold the copyright on your compilation of the works, but you'd need to secure permission to make and distribute the copies.

This is a ruling near and dear to my heart. As former Associate General Counsel of CompuServe, I was called upon both to defend and prosecute many such cases. The DMCA does have it's good points, but they got and get it wrong in so many other ways.

[greatbearmd.livejournal.com]

Exactly. This is why I called it a derivative work, which ends up being a whole new product. DJs and remixers gain permission to use various works in their trade, and depending on the type of permission, they can sell their derivatives. Others, like the incredible Kleptones, are able to use copyrighted songs in their mashups, but cant profit by their work. This is why you can download some of the most amazing mashups you'll ever hear - for free.

[budmassey.livejournal.com]

I'm not exactly sure what the Kleptones do that allows them to use copyrighted material, unless you're saying they have a limited license.

[greatbearmd.livejournal.com]

This is the subject of an entirely different post/rant. So much manufactured music is entirely disposable, and that's exactly what the music 'industry' wants. The sheeple mindlessly go after the next manufactured pop sensation, buy up all the downloads and ringtones and such, then it's on to the next thing. Granted, this was happening even in my early years, but not like this. Most of the acts came from the bottom up - talent was discovered and moved up into the hit machine if it was 'good'. Radio made the stars. Now it's from the top down. Record company investments are marketed through fixed playlists and advertising no different than breakfast cereal. Not that there isnt good music to be found. You just wont find it on most major labels anymore.

[furr-a-bruin.livejournal.com]

Given that the record companies screw the hell out of artists with their seriously warped contracts, and screw music fans with ridiculous prices (especially considering how very little of that money actually gets to the artist), I'm kind of surprised it's taken this long for the meltdown to occur.

Add to that the fact that with modern on-demand production systems as exemplified by Lulu.com, CafePress.com and others, there's simply no reason for any recording to ever be "out of print." (And yet, if someone copies a recording they're not willing to sell copies of, they'll still scream "piracy!")

[madhugger.livejournal.com]

There was a time when all that rock music of the sixties and seventies was held in the same regard as you hold Fall Out Boy. Though the comparisons were between classic jazz and pop artists of the previous generation to the Beatles and Rolling Stones. No matter what there will be people 25 years from now listening to the music from today. It may still be crap, but they will enjoy it at that is what matters most - I can always listen to what I want.

[ciddyguy.livejournal.com]

This is indeed good news. The record companies have had their way for much too long, about time someone stuck it to them.

[b-a-n-d-i-t.livejournal.com]

outstanding news

[pulsecub.livejournal.com]

Wow! Nice to know! I haven't received any promos from the labels in a long time, but I"m glad the Courts finally took more wind out of their sails!