Online CD Seller Fights Universal’s Infringement Allegations

September 2007

Record labels

The Electronic Frontiers Foundation (EFF) is supporting an eBay seller in taking on Universal Music Group (UMG) in court after the record industry giant targeted his online music sales with claims of copyright infringement. The EFF and the San Francisco law firm of Keker & Van Nest LLP are representing Troy Augusto, whose online auctions included sales of promotional CDs distributed by Universal. Augusto does business on eBay under the name Roast Beast Music and specializes in sales of rare and collectible music. The EFF say that US copyright law’s “first sale” doctrine makes it clear that the owner of a CD is entitled to resell it without the permission of the copyright holder. Nevertheless, Universal demanded that eBay take down Augusto’s auctions, claiming that CDs marked as “promotional use only” remain the property of Universal and thus can never be resold. “When a consumer buys a CD, he gets certain rights, including the right to resell it. Universal is mistaken if it thinks that it can trump these rights simply by putting a label on a CD,” said Fred von Lohmann, EFF Senior Intellectual Property Attorney. “Universal is trying to unilaterally rewrite copyright law to the detriment of Augusto’s legitimate business and the public. Unless this effort is blocked, it could jeopardize not only sales of used CDs, but also libraries, used bookstores, and businesses that rent movies and video games.” In May, Universal filed a copyright infringement lawsuit against Augusto. Now the EFF have filed papers with the federal court in Los Angeles answering Universal’s claims and counter-suing the company for sending bogus “takedown notices” to eBay that resulted in the unwarranted suspension of Augusto’s auctions. However its interesting to note that Universal are making the point that you cannot ‘buy’ a promotional CD in the first place and they are not usually circulated to consumers so a court may well not agree with EFF’s position which relies on Section 109Copyright Act 17 USC 109) – in effect Universal are saying they have always been the ‘owner’ even if promotional CDs are not in their actual possession. The EFF also say that this is not the first instance of Universal and its affiliated companies abusing copyright law. Last month, the EFF filed a suit against Universal Music Publishing Group on behalf of a mother who had a home video removed from YouTube because a snippet of a Prince song could be heard in the background. In May, The EFF say UMG made ‘baseless’ copyright complaints about a video podcast by political blogger Michelle Malkin.

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