Is Selling A CD You Found In The Trash Copyright Infringement?
from the so-sayeth-the-courts dept
Various courts have held that by putting something in the trash, you are relinquishing your ownership of those goods. However, apparently that might not apply to music. William Patry has the story on an unfortunate decision by our court system, suggesting that if you find a CD in the trash and sell it you may be charged with copyright infringement. The story of the case is as follows: BMG famously offers a CD and DVD "club" that sends out new CDs and DVDs on a regular basis to subscribers. Sometimes those subscribers move and cannot be found or for whatever reason the discs are determined to be "undeliverable." BMG so devalues its own discs that it has told the post office to throw out the undeliverable discs, rather than spend the postage to have them sent back to BMG. The post office dumps the discs in its dumpsters -- at which point a Postal Service employee dumpster dives to rescue them. He then goes and sells those discs to local stores, cashing in to the tune of nearly $80,000. This gets discovered, and he gets charged with mail fraud before settling on charges of copyright infringement.However, what no one seems to clearly explain is where the infringement is? BMG instructed the CDs to be thrown out. The Post Office threw them out. At that point, the property has been relinquished by BMG and the Post Office, so it would appear that anyone who finds the discs wouldn't be committing any kind of infringement (or, for that matter, fraud) in selling them. A lower court ruling was especially bizarre, in demanding that the guy give up all the money he earned to BMG due to the "lost opportunity" to BMG in selling the music. As we've discussed at length before a "lost opportunity" is not an actual loss and it's not a crime. It's simply a marketing challenge. Otherwise, just about any business could be guilty of creating a "lost opportunity" for any competitor. The pizza shop down the street creates a "lost opportunity" every time I eat there instead of the deli. Hell, just buying one musician's CD rather than another's creates a "lost opportunity." So, it's ridiculous to equate a "lost opportunity" to a crime -- and even worse when that "lost opportunity" was self-created by BMG choosing to throw out the discs.
Luckily, the Appeals Court tossed out the "lost opportunity" part, but as Patry notes, it doesn't appear that anyone questioned how the facts of this case could possibly be considered copyright infringement. Selling used CDs is considered to be perfectly legal and non-infringing. How is selling CDs that have been thrown in the garbage any different?
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Filed Under: cds, copyright, first sale, garbage
Companies: bmg
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Arme juridique escalade
In other words, he likely brought a pea shooter to a gunfight, whereas BMG likely brought its nukes.
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There is no way anybody in their right mind could complain about copyrights in this case, because nothing, absolutely NOTHING, has been copied. Legal discs just changed ownership, which is perfectly legal. If I buy a CD for $20, it becomes mine. If I can get somebody to buy it from me on eBay for $200, that's my privilege (and luck) since I have purchased the right to do whatever I want with the physical disc.
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Homeless people are steeling from the state!?
...at least this is how I heard it regarding those blue-bins that the homeless people really like to take plastic bottles and cans from.
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poetic justice
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selling used CDs
That would really suck.
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Re: selling used CDs
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selling used CDs
That would really suck.
And what is to come of mixtape culture. What am I going to give my sweetheart on Valentines day? Chocolates I guess. Fatten her up a bit, rather than turn her on to some good new music she may not have heard.
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finder's keepers
Given as the new owner of a disc has right of first sale, there is no copyright infringement, imo.
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Sony BMG is NOT green
Judging by this entry, nothing was charged against the man in court that dealt with stealing from a dumpster, so the only problem here is we have a court dishing out a terrible verdict in finding the man guilty of infringement... he had some luck and some common sense, and he put the two together.
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Sony BMG is NOT green
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Similar to books?
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Re: Similar to books?
I don't think there is any responsibility on the USPS since they are just the carrier. And once the responsibility is relinquished, it becomes like any other trash.
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I recall someone going through Madonna's public trash
lol
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As D Mentioned...
They use the same justification, as well. Retailers report the items as unsold and receive a partial credit from vendors.
I would not be surprised if grocery stores deal with their unsold goods in the same way - it's not like they send their produce back to the farmers, so they must destroy what's left, but then they probably report it as a loss.
Though, obviously, the shelf life of a book, CD, or DVD is longer than the lifespan of the average orange.
It's a bit of a tricky situation, though - I understand that for tax purposes and business reasons it makes more sense to destroy remainders than to ship them back, but I do question the illegality of going through "destroyed" property and making use of it.
You'd think the items could be donated, or put to some other beneficial use, but if you were caught taking "stripped" merchandise anywhere but the trash, you'd get fired for the attempt.
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Re: As D Mentioned...
The Post office doesn't have tax breaks. There is no destruction of unsold products. There is no "stripped" merchandise (and the said firing is company policy not law).
Taking items from dumpsters isn't against any law. Dumpster diving even for personal information isn't against the law. Using that information is. This is why poparatzi can dig threw trash and not get into trouble. This is why the homeless can get cans without issue. This is exactly why they try to drill it into your head to shred personal documents.
-July, Boycott RIAA/MPAA
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This Kinda Makes Sense
When something is thrown in the trash by someone, it's not always the case that they don't care what happens to it, they just want it gone, and this should be respected.
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Re: This Kinda Makes Sense
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Blockbuster DVD
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My 10-year-old has a better business model
Instead of trashing the CDs, they could pay the $.50 to be returned, sell them a 50% to [generic big-box retailers] and recover some of the cost. In the process, they would be able to determine the invaild addresses and discontinue mailing more CDs!
Geez..this is so hard to figure out.
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environmental impact
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Of course he should be charged
No one purchased the CDs; BMG made no proft from those CDs; so for someone to then sell them without paying a percentage to BMG should be charged. It's different to breaking into a store and stealing a lot of CDs. That's still a crime, but it's not copyright infringement as BMG would still get paid courtesy of the insurance that the store has. Selling written-off goods is a crime.
I work in retail. Goods that get written off and thrown in the bin cannot be used. Staff at the store cannot take them, even if they're perfectly usuable. Anyone caught taking the products out of the bins get charged with shop-lifting.
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Re: Of course he should be charged
"BMG famously offers a CD and DVD 'club' that sends out new CDs and DVDs on a regular basis to subscribers. Sometimes those subscribers move and cannot be found or for whatever reason the discs are determined to be 'undeliverable.'"
BMG got their profit.
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Re: Re: Of course he should be charged
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Re: Of course he should be charged
Since you work in retail, the company you work for more than likely has a policy that obligates you to destroy or otherwise render useless the written off items.
The USPS has no obligation to BMG. BMG asked them to toss the CDs instead of sending the merchandise back. In other words, BMG relinquished their ownership of the merchandise and did nothing to ensure proper disposal. If the USPS was so inclined, they could have simply handed the discs out to their employees.
It simply doesn't matter if BMG was paid for the discs or not, they ceded any rights they had to profit off of them when they neglected to properly dispose of them. They wanted to save a few bucks on return shipping by skipping out on doing things the right way. BMG was responsible for any losses that they suffered, or believe they suffered.
The only thing the employee might be guilty of is violating USPS policy concerning going through their dumpster for personal reasons. I don't know if that's against the rules or not (I have a feeling it is), but that would be a USPS matter, and wouldn't concern BMG. And I highly doubt that it would be considered a serious violation, since the discs at that point did not belong to anyone.
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Re: Of course he should be charged
Since you work in retail, the company you work for more than likely has a policy that obligates you to destroy or otherwise render useless the written off items.
The USPS has no obligation to BMG. BMG asked them to toss the CDs instead of sending the merchandise back. In other words, BMG relinquished their ownership of the merchandise and did nothing to ensure proper disposal. If the USPS was so inclined, they could have simply handed the discs out to their employees.
It simply doesn't matter if BMG was paid for the discs or not, they ceded any rights they had to profit off of them when they neglected to properly dispose of them. They wanted to save a few bucks on return shipping by skipping out on doing things the right way. BMG was responsible for any losses that they suffered, or believe they suffered.
The only thing the employee might be guilty of is violating USPS policy concerning going through their dumpster for personal reasons. I don't know if that's against the rules or not (I have a feeling it is), but that would be a USPS matter, and wouldn't concern BMG. And I highly doubt that it would be considered a serious violation, since the discs at that point did not belong to anyone.
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Re: Of course he should be charged
Since you work in retail, the company you work for more than likely has a policy that obligates you to destroy or otherwise render useless the written off items.
The USPS has no obligation to BMG. BMG asked them to toss the CDs instead of sending the merchandise back. In other words, BMG relinquished their ownership of the merchandise and did nothing to ensure proper disposal. If the USPS was so inclined, they could have simply handed the discs out to their employees.
It simply doesn't matter if BMG was paid for the discs or not, they ceded any rights they had to profit off of them when they neglected to properly dispose of them. They wanted to save a few bucks on return shipping by skipping out on doing things the right way. BMG was responsible for any losses that they suffered, or believe they suffered.
The only thing the employee might be guilty of is violating USPS policy concerning going through their dumpster for personal reasons. I don't know if that's against the rules or not (I have a feeling it is), but that would be a USPS matter, and wouldn't concern BMG. And I highly doubt that it would be considered a serious violation, since the discs at that point did not belong to anyone.
"When you throw something away, it shouldn't be picked up by anybody unless you give full consent."
When you throw something away, you've given up your ownership of it. Period. If you don't want it falling into the wrong hands, it is your responsibility to shred or otherwise destroy the item.
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death by popcorn
An enterprising group of young film makers were tipped off about the stations negligent disposal method. They simply dumped the tapes intact into a refuse bin behind the old location. Using the "found footage" under what could be considered fair use guidelines they developed a mockumentary about the demise of the Winnipeg Jets. As these film makers were also considered by some relevant movers and shakers in the local indie film scene, their "documentary" got screenings at local and national film festivals, garnering them cult sensation status.
Upon finding out about their success the TV stations lawyers served a cease and desist order barring them from any public presentation of what some could call a legitimate fair use of found/discarded media. The film makers went public with their legal troubles which only served to rally support for their cause, eventually the TV station ceded to a compromise allowing them to show their film in not for profit venues such as film festivals and free presentations.
The movie is a fantastic example of fair use in my opinion. Look it up. "Death by Popcorn"
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Re: death by popcorn
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As for books; I used to hang out in a local book store and pester one of the employees (he was a Doctor Who fan like myself) and the subject once turned to unsold books. He mentioned them tearing off the covers and sending them back to the company. I commented that it was a waste they couldn't donate them some place, like a nursing home, or other non-profit organization that might not have the money to buy new books. He said that they did donate some of the books and magazines.
I also used to have a relative who would get boxes of coverless books from someone they knew who worked at a bookstore. They would let friends and family go through them and pick out anything they wanted. A much better solution than simply throwing them away, in my opinion.
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Infringement of right to control first sale of cop
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Re: Infringement of right to control first sale of
"Note that the First Sale doctrine may not permit the postal worker's "resale" of these discs, because the initial "sale" by the record club was never completed."
The first sale doctrine would not apply here. BMG attempted to send the purchased discs to the customers, but were unable to deliver them. BMG then asked the USPS to dispose of the discs, which they were under no obligation to do.
There was no transfer of property, so the first sale doctrine would not apply. The property was abandoned by BMG because they didn't want to pay for the return of the discs.
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Re: Infringement of right to control first sale
�the first sale doctrine would not apply� � DanC
Which was my point... that the doctrine doesn't apply, because there was no �first sale� � until the postal worker sold them. The first sale doctrine is what permits the resale of a copyrighted work without the copyright holder's permision.
The postal worker�s sale to local record shops was the �first sale,� and copyright law gives the copyright holder basic rights to control the first sale of any copy of a work to which copyright applies.
I�m not endorsing this as good policy, but it seems like a plausible interpretation of copyright law.
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Re: Re: Infringement of right to control first sal
I looked up some of the specifics of the first sale doctrine, and found where it was codified in US Copyright Law:
"the owner of a particular copy or phonorecord lawfully made under this title, or any person authorized by such owner, is entitled, without the authority of the copyright owner, to sell or otherwise dispose of the possession of that copy or phonorecord."
If the discs were owned by BMG, then they were also abandoned by BMG. A "first sale" is not required to sell the discs, only ownership of the discs.
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So, they are stretching their view of copyright as the their exclusive right to profit from their own trash. If the CDs went to a plastics recycling center, what would they say? Someone would be making a profit from the plastic discs they made, but they would not be competing in the CD marketplace, so they would not care.
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Worth less than return postage.
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Worth less than return postage?
The logic behind the theft from the trash bin makes sense, but that's driven the P&L statement, right?
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What does this mean??
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