tag:blogger.com,1999:blog-5574479.post4138122448787408593..comments2024-03-19T06:27:47.905+00:00Comments on The IPKat: What Counsel Would You Have Given: UMG Recordings v. Augusto?Verónica Rodríguez Arguijohttp://www.blogger.com/profile/05763207846940036921noreply@blogger.comBlogger5125tag:blogger.com,1999:blog-5574479.post-63261779832595415892014-04-20T00:20:53.192+01:002014-04-20T00:20:53.192+01:00Well if you were an artist putting out your own CD...Well if you were an artist putting out your own CD and trying to sell it on your website and then promo copies turned up on ebay at half price - because some poxy journalist sold it - you'd maybe get frustrated too. I can understand the labels' position here.<br />Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-5574479.post-9936891725944667422011-01-10T11:15:03.993+00:002011-01-10T11:15:03.993+00:00I suspect that the commercial need drove things - ...I suspect that the commercial need drove things - they need to get promo CDs out to reviewers so that they get a positive press and column inches in printed news and online and thereby generate retail sales. The number of promo CDs compared to retail CDs is fairly minimal, so the actual commercial loss (in this one case) is negligible.<br /><br />Promo CDs get sent out to plenty of people, the recipients change frequently, and copies sent to publications per se are passed around and shared. Individually marking and tracking promo CDs is time-consuming and costly. It's pretty much impossible to say who received what and when, let alone try to enforce contract terms against the recipients (I note that the action here was against somebody further down the chain). The most practical solution might be some kind of an online distribution channel with tight DRM, but that might not be very popular with journalists. <br /><br />The availability of second hand promo material such as CDs is also important for fans since it gives them access to highly desirable products (maybe it's that acoustic version of a particular track) which are not available through the regular retail channel. Heck, I've got plenty of promo CDs at home which I bought from second-hand stores, and they fuelled my enthusiasm for the artists and generated plenty of sales of retail CDs, merchandise and concert tickets.<br /><br />Essentially, this is a no-win situation for a record label taking any kind of an aggressive stance - the best option is to embrace the journalists et al and use them to generate a positive press for artists. If they're that bothered about people selling promo CDs then just don't send them out (or at least don't send out so many), use DRM-encumbered media (above), or have special press events (fairly standard in the music industry) and don't distribute physical media.<br /><br />Seeking to impose and enforce contract terms on promo CDs would just annoy the journalists and alienate fans. And if people are actually willing to spend money on physical products rather than download tracks online without paying for them then that should be encouraged, even if it doesn't directly generate income for the record label.<br /><br />Go into any second hand record shop and you will find vast numbers of promo CDs for sale. It was exactly the same for vinyl. In fact, a quick search on eBay for 'promo CD' gave me just under 38000 results. This is not something that record labels can or should try to control.<br /><br />So, it's bad press and a total no-win for the record label.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-5574479.post-52642513311580071412011-01-09T08:20:32.439+00:002011-01-09T08:20:32.439+00:00Applying the European approach: The first sale or ...Applying the European approach: The first sale or other contract, transferring the property of the physical carrier embodying the copyrighted work, exhausts this copyright, notwithstanding the parties' intentions (id. ex lege). UMG is transferring the CDs, though not selling them, and that's sufficient. By way of statements, such as "Promotional Use Only—Not for Sale", the record company could not limit or exclude the exhaustion. The right-holder consent is necessary in order to transfer the CDs property, not to exhaust / un-exhaust the copyright. Exhaustion is not an implied license but core IP issue.<br />If I were UMG lawyer I'd rather advise the company: 'Do not produce CDs - offer the recordings via the network. No exhaustion for digital recordings downloaded from the networks - notwithstanding the right-holder consent to make a copy (on a CD or otherwise). Or offer rental-lending rights - no exhaustion once again'. If there is not any transfer of the physical disguise, there is not any exhaustion. I'd rather evade 'consensual licensing operation' despite the real time deep pressure.Copyrightovnoreply@blogger.comtag:blogger.com,1999:blog-5574479.post-74947980505012217912011-01-09T08:05:24.217+00:002011-01-09T08:05:24.217+00:00From discussion with a US IP lawyer, I understand ...From discussion with a US IP lawyer, I understand that US laws on the rule against derogation, exhaustion of rights etc have taken a different direction to English laws, although some of the terminology is confusingly similar.<br /><br />Having said that, my instinctive view is that the record company has not done enough. It could have set up proper contracts with each recipient. My guess is that the business focus was on getting the product out to influential recipients. Did they (a) even consider legal issues when they did so? Or did they (b) take a business decision that it was more important to make it easy for the influential person to receive and use the product for promotional purposes, than to address legal issues properly (which might have been off-putting to some recipients)? Or did they (c) genuinely believe, in light of careful legal advice, that all they had to do was put these statements on the product and this would given watertight legal protection? I suspect (a) is most likely, (b) is possible, and (c) is unlikely.<br /><br />This is, of course, merely speculation. The best marketing departments work closely with the legal department to ensure that all the important "i"s are dotted and "t"s are crossed before a promotional exercise is initiated.Mark Andersonhttp://www.andlaw.eunoreply@blogger.comtag:blogger.com,1999:blog-5574479.post-691564808227897932011-01-09T01:52:28.160+00:002011-01-09T01:52:28.160+00:00In the Ninth Circuit, some might say that it is a ...In the Ninth Circuit, some might say that it is a matter of quantity, rather than quality, of IP cases. This case exemplifies the confusion between a contract and a licence (or license). (I wonder whether the discussion about licences was a bit off the point in any case. Listening to the CD would not have engaged copyright.) However, in answer to the IPKat's question, I would have had a slight doubt about the wording "resale is not allowed". If resale had to be fobidden, you might say, was this not in substance a transfer of ownership? But whatever else it was, the initial transfer of possession by UMG was not a sale, stricto sensu, so "resale" would in any case be a misnomer. The transfer of possession was a bailment, and the case was wrongly decided. Better wording on the CDs should squash this decision.Thomas Dillonnoreply@blogger.com