The Ninth Circuit has decided that if you get unsolicited CDs through the mail, you can turn around and sell them on eBay. It’s not copyright infringement, notwithstanding a label on the CD that says “Promotional Use Only—Not for Sale.”
The case is UMG Recordings Inc. v. Augusto, 9th Cir., No. 08-55998, 1/4/11). Here is the opinion [pdf], and BNA has a summary here.
Makes sense, right? I’ve always thought so. But not so fast — the holding seems to be based on a far less common-sense ground than suggested in title of this post:
In UMG, it was persuasive to the Ninth Circuit that the CDs were sent unsolicited through the mail. The court looked to the federal Unordered Merchandise Statute (39 U.S.C. §3009), which says that if you get stuff through the mail you didn’t order, the company that sent it to you can’t bill you for it, and you get to keep whatever it is as a gift.
Which, yes, is what you’d think, not only statutorily-wise but real-life wise. But the point is, as Eric points out, by virtue of their reliance on this statute (and courts, of course, will always — well, they probably should always, but there aren’t too many alwayses any more, are there? — rule as narrowly as possible), this holding does not apply to software, or to other stuff you buy and may foolishly think you own. Maybe because you even bought it. With money.
Baby steps, though. Baby steps!