An interesting case has finished its first round in the court system. Universal Music sued eBay seller Troy Augusto for selling promo copies of CDs. “The judge ruled [that these sales] are legal because the promo CDs are essentially gifts from the labels that the recipient can resell under the first sale doctrine.”
My feelings on this one are a little bit tricky. I don’t agree that it makes sense that corporations should be able to legally prevent the sale or resale of anything that is bought or given. I even got “in trouble” once for selling a legitimate copy of Microsoft software that I received for free at a conference and I thought it was pretty ridiculous. The CD apparently had a user agreement inside the packaging (which I had never opened!) saying that the user agreed not to resell the item. I didn’t agree to it. I didn’t open. However, eBay easily caves to corporate interests and does not really have good mechanisms for protecting smaller interests. Out of curiosity, I looked into complaining about promo copies of our albums selling on eBay and I found that the process for complaining was pretty difficult, tedious, and purposely nebulous (so I never did it).
I know first hand that it is kind of crappy for artists to have to deal with their promo discs selling on eBay and Amazon at prices that are impossible to compete with. It can cut in to our legitimate sales quite substantially. Look at the math this way. As a small band, we end up sending out about as many promo CDs to press, radio, bookers, freelancers, etc. as we actually sell. There are a lot of places to send promo CDs! As such, if even 10% of those people resell those CDs, we’ve just lost close to 10% of our CD sales. When it comes down to it, I can’t and won’t stop you from buying a promo copy of our CD, but as far as I am concerned, it almost feels better to me to have you pirate it instead.
Still, I am glad that the court ruled this way. I hate the idea that you can possess something, but not really own it. It’s a really absurd concept. At the end of the day, personal interests should win out over business interests. I wish they always did.