Wednesday, August 08, 2007

EFF Defense of Selling Promotional CDs

The Electronic Frontier Foundation is an organization that consistently confirms my self-image as one who does not blindly follow the views of any single entity, political or otherwise. While it frequently take righteous positions regarding the true fair use of copyrights and the frequent unjustified, overreaching for control by major media, I respectfully part ways with them on one most recent issue.

The EFF is defending Troy Augusto in an action brought by Universal Music Group. Augusto was selling promo CDs on an eBay auction.

I understand the spirit of the EFF argument - the first sale doctrine enables anyone to sell a CD that he or she has purchased. However, the EFF is arguing that Universal's position could jeopardize the business of libraries, used CD stores, and rental houses. If Universal were challenging the sanctity of the first sale doctrine then the EFF argument would be valid, but this is not the case.

Promotional CDs are just that - they are given away to radio stations and other taste makers in order to promote the band. They are *given away* for this purpose. The person receiving the promo copy has tendered no monetary consideration in exchange for the CD. The only consideration on behalf of the recipient is to agree not to resell it.

The crux of the argument is not based on copyright law but is instead a contract claim, and nothing is more troubling than when otherwise forward-thinkers try to hinge every deed that concerns copyrights on copyright law. The relief sought by Universal does not require dismantling the first sale doctrine, nor does it threaten any of the legitimate uses identified by EFF. Rather, it merely states that a promotional copy is not sold and thus any distribution of a promotional copy does not qualify under the first sale doctrine.

Generally, we always look at issues in copyright through a prism of fairness, which is why the EFF so frequently sounds a sympathetic alarm. However, it is hard to defend those who sell promotional copies. These people are vastly increasing their profit margins by selling products they did not pay for. The artist isn't getting paid, the label isn't getting paid, and the consumer is still (generally) paying full price. Even if the consumer is getting a discount, it is never going to be as deep as the one gotten by the seller, i.e., it will never be free.

The consequence if EFF wins is, of course, that promo copies will be free to sell (despite a contractual, not copyright, commitment to the contrary). The result is that no promotional copies will be distributed. Music writers, DJs, concert promoters, clubs, and all other people who used to get free copies of music will have to pay for them.

So then, what exactly is EFF defending? The right of some individuals to make a lot of extra money off of someone else's work? What's fair about that? The label gets screwed, but more importantly, the artist and consumer also get screwed.