http://www.iplitigationupdate.com/blog.aspx?entry=1173
"Sending Promotional Music CDs Constitutes First Sale for Copyright Protection Purposes Januar 28, 2011 | Posted by Karin Scherner Aldama | Print this page The Ninth Circuit recently held that a copyright owners unsolicited mailing of promotional music CDs to, for example, music critics and radio disc jockeys constituted a sale of the discs to their recipients for purposes of the Copyright Acts first sale doctrine, 17 U.S.C. § 109(a). UMG Recordings, Inc. v. Augusto, __ F.3d __, No. 08-55998, 2011 WL 9399 (9th Cir. Jan. 4, 2011). UMG brought copyright infringement claims against Augusto, who had obtained from third parties promotional CDs distributed by UMG and then offered those CDs for auction on the Internet. UMG argued that the original recipients of its CDs only obtained a license because the CDs generally contained promotional statements indicating that they were licensed to the intended recipient for personal use only, and that their acceptance constitute[s] an agreement to comply with the terms of the license. Id. at *1. The promotional statements also prohibited the transfer or resale of the CDs. Augusto argued against the claims on the basis of the first sale doctrine. That doctrine provides that the lawful owner of a lawful copy of a CD can sell or otherwise dispose of that copy as he pleases, without the consent of the copyright owner. 17 U.S.C. § 109(a). The district court granted summary judgment for Augusto, and UMG appealed. In upholding the district courts grant of summary judgment for Augusto, the Ninth Circuit concluded that the original recipients obtained ownership of and title to the CDs, and thus the first sale doctrine applied. The Ninth Circuit based its conclusion on an evaluation of all the circumstances of the CDs distribution. UMG, 2011 WL 9399, at *4. Of particular importance were the following factors: (1) The CDs were unsolicited and dispatched without any prior arrangement with their intended recipients in regard to what would happen to the individual CDs; (2) The CDs [were] not numbered, and no attempt [was] made to keep track of where particular copies [were] or what use [was] made of them, so that UMG retained no control over the copyrighted material; and (3) The promotional statements on the CDs did not create a license because there was no evidence that any of the original recipients ever agreed to enter into a license agreement, and acceptance of a license cannot be assumed when the recipient makes no response at all. Id. at *4, *6. Based on these factors, the court concluded that UMG dispatched the CDs in a manner that permitted their receipt and retention by the recipients without the recipients accepting the terms of the promotional statements. UMGs transfer of unlimited possession in the circumstances present here effected a gift or sale within the meaning of the first sale doctrine. Id. at 7. In reaching its conclusion, the court emphasized the differences between the circumstances in this case and those at issue in cases involving software licenses. Specifically, the court focused on the fact that software users order and pay for copies of software and implied that it was also relevant that software vendors typically control how the copyrighted software can be used. Id. at *6-7. Effective software licenses are thus distinguishable from the ineffective licenses that UMG tried to create. Augusto had also argued against UMGs claims based on the Unordered Merchandise Statute, 39 U.S.C. § 3009, which allows recipients of unordered merchandise to dispose of that merchandise as they see fit. The court found that Augusto could not invoke that statute directly because, by its terms, it applied only to the CDs original recipients. Nonetheless, the court concluded that the Unordered Merchandise Statute supported its conclusion that the mailing of the CDs effected a sale and not a license because the statute renders recipients of unordered merchandise, such as the CDs at issue, owners of that merchandise. UMG, 2011 WL 9399, at *5. Lesson Learned: The unsolicited mailing of copyrighted material without any control over what subsequently happens to that material constitutes a first sale. Unless the recipients agree to enter into a license, a first sale occurs even if the material is accompanied by a promotional statement seeking to create a license, because acceptance of such a license cannot be assumed without the recipients confirmation of acceptance. Consequently, after receipt of unsolicited copyrighted materials, recipients can dispose of that material as they see fit, and the copyright holder cannot control or prevent that disposition." <chuckles> regards, alexander. -- http://gng.z505.com/index.htm (GNG is a derecursive recursive derecursion which pwns GNU since it can be infinitely looped as GNGNGNGNG...NGNGNG... and can be said backwards too, whereas GNU cannot.) _______________________________________________ gnu-misc-discuss mailing list [email protected] http://lists.gnu.org/mailman/listinfo/gnu-misc-discuss
