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Legal
Universal sue eBay seller for flogging promo CDs
By CMU Editorial | Published on Friday 4 June 2010
Not that any of the music reviewing CMU Daily readers out there have ever sold on a promo CD – obviously – but those of you who get a daily helping of promotional musical disks in the post might be interested in following this court case next week, even if it is testing a US law.
An American guy who sold 26 promo CDs on eBay will next week be in court to face, for a second time, a legal claim by Universal Music. Troy Augusto said he bought the promo CDs from a second-hand store where, presumably, some music journalist had sold them on. When Universal saw Augusto was flogging the promos on the auction website they got rather stressed about the whole thing and sued him.
But his legal people fought the lawsuit on the so called ‘first sale’ principle of US copyright law, that says that if someone buys a legitimate copy of a copyrighted work, that someone can sell that particular copy on to another person, and profit from the sale if they can, and there is nothing the copyright owner can do – ie once the ‘first sale’ has happened of any one copy, the copyright owner cannot control subsequent resale of the copy.
But Universal argued that didn’t apply to the promo CDs, because they had good old “promo: not for resale” stickers on them. But the US court originally hearing the case back in 2008 disagreed, arguing that because Augusto had bought the CDs legitimately from a second-hand store, the ‘not for resale’ sticker was irrelevant and the ‘first sale’ principle still applied. I think the implication was the label might be able to stop a journalist who acquired a promo CD for free from selling it on, but once it’s been sold to a third party the label loses control.
Universal were not impressed with that ruling and began appeal proceedings, which will finally reach a Seattle court on Monday. Whether or not you believe Universal have a case on this one, fighting Augusto through the courts does seem like a lot of hassle for what is surely a minor issue in the wider scheme of things, and probably an issue that has a limited lifespan, given that most physical promo CDs will presumably be phased out eventually, however much journalists might fight that move.
