January 28, 2009 | By Fred von Lohmann

MP3 Bloggers, Where Are Your Promo CDs?

According to briefs filed last month by the RIAA and Universal Music Group, it's illegal to sell, give away, or even throw out "promo CDs." Of course, this is exactly the argument that UMG made, and lost, in court last year. Despite that loss, and despite the open secret that many music reviewers have been dumping promo CDs in used record stores for years, UMG has opted to appeal. And this time they got the RIAA to weigh in on behalf of the industry, echoing UMG's view that promo CDs are owned by the labels forever.

So, Stereogum, Idolator, Pitchfork, Gorilla v. Bear, Fluxblog, and (my personal favorite) Large Hearted Boy, are all of you pirates if you can't account for every promo CD you've ever received (you do get them, don't you)? Not according to the district court that ruled in favor of Troy Augusto, an eBay seller that specializes in selling collectibles, including promo CDs.

Which brings us to UMG's appeal. Today, with the assistance of the San Francisco law firm of Keker & Van Nest, EFF filed a brief on behalf of Mr. Augusto, explaining why the appeals court should affirm the district court ruling.

Here's the short version: it's absurd to suggest that a copyright owner can give away hundreds of thousands of CDs, slap a "not for resale" sticker on them, and claim to own them forever. That's exactly what the "first sale" doctrine is meant to prevent. After all, if UMG were right, then Hollywood could slap a "not for rental" sticker on DVDs, thereby shutting down video rental businesses like Redbox. And book publishers could slap a "not for library lending" sticker on books. That's not the law, at least not since 1908, when the Supreme Court ruled against a "may not be sold for less than $1" label in this book.

We don't expect to get a ruling from the appeals court until sometime next year (the wheels of appellate justice move slowly), but until then, the district court ruling in favor of Mr. Augusto remains the only published ruling addressing whether selling promo CDs is legal. We're looking forward to the Ninth Circuit upholding it, and letting music reviewers breathe a little easier when they clean out the attic.


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