Beware when throwing away Promo CDs

UMG says throwing away "promo" CDs is illegal

by Michael Smith (Veshengro)

In a brief filed in federal court recently, Universal Music Group (UMG) states that, when it comes to the millions of promotional CDs ("promo CDs") that it has sent out to music reviewers, radio stations, DJs, and other music industry insiders, throwing them away is "an unauthorized distribution" that violates copyright law. Yes, you read that right – if you have ever received a promo CD from UMG, and you do not still have it, then UMG thinks you're a pirate. That you have committed and act of “unauthorized distribution” of their music.

UMG seems to argue that the “first sale doctrine” does not apply to prom CDs to which it slapped the label of “promotional use only” and any subsequent sale, even if those have been found or whatever, infringes copyright law. The Supreme Court first recognized the first sale doctrine when a book publisher tried the same thing with a label stating "may not be sold for less than one dollar,” and we've seen patent owners trying the same trick, unsuccessfully, as far as we know, on printer cartridges.

UMG apprently thinks that by simply slapping the "promotional use only" label onto a CD it somehow gives it "eternal ownership" over the CD. While this might make sense to a goblin living in Harry Potter's world, it is not the law under the Copyright Act.

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). 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.

I mean, erm, excuse me for a moment. It was sent to me, to review, I no longer wanted it and threw it in the trash but by doing so I break the law? Someone somewhere is having problems in the upper ranges of his or her body, methinks.

However, despite the fact that this may be the law, e.g. regarding the “first sale doctrine”, no doubt this is not going to be the last time that someone, some huge company, will try this trick, especially on someone smaller than themselves.

I personally have seen the stamps in review copies of books that stated “review copy only – not for resale”, and in some cases the mere acceptance of the book, it was claimed, for review, was agreement to this policy and that any gifting and especially sale of such a book would be a felony under copyright law, etc.

I must say that, in general, I very rarely ever part with books, CDs, etc. that have come my way for review but I am damned if I allow some such statement to have any influence on me as to what I do with this book or whatever product that, by virtue of having been given to me for review on the understanding that it become the reviewer's property – we do not do reviews of articles loaned – it is then up to me what I do with the book or product afterwards. Ownership has passed to me from the previous owner, whether it is a publisher, manufacturer, or vendor, and this even whether or not a review is forthcoming.

So, folks, don't get yourself browbeaten by the big boys. If need be get good legal advice and there are enough precedents set to fight such lawsuits.

© Tatchipen Media, April 2008