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Without reading any other responses...[ Reply to This ] (none / 0) (#17)
by rickb928 on Tue Dec 16, 2003 at 12:15:53 PM PDT

I have this take.

First, there was a sale. Time-Warner sold these CDs to Gap. then Gap sold you an item, and the CD was a promo to go with the item. So, Time-Warner did make a sale, unless they gave the CDs to Gap... in which case:

Second, the copyright owner does have some rights to say how the work might be distributed. I believe, sadly, that Time-Warner and Gap have the right to say you can't sell the promo item, for these reasons. One, the promotion is intended to motivate you to buy a product, in part, to recieve the promotional item also. If these CDs became readily available to non-buyers, Gap might fear they lose sales themselves. Might not be true, but it's reasonable, and any court would agree. Two, perhaps this was a special CD with content not normally available, or not available in that collection, and Time-Warner might reasonably expect that sales of the CD could in fact result in lost sales of other CDs. The best rationale for this; I might like the CD because it offers me the few tracks I want without buying several other CDs. True? for me, absolutely.

Last, but not least, though, consider this. Could you give this CD away on eBay, auctioning only for the shipping and handling costs? Not actually charging for the CD that is? Or would this be a sham transaction, disguising the sale as a 'shipping only' transaction? Hmm...

I'm not an apologist for the recording industry, or DCMA, or any other conspiracy theory you have in mind. But the reality is that owners should have some reasonable expectation that a promotional item be restricted to its promotional use, that is to promote something.

Now, a year from today, long after this promo is over, do Time-Warner and Gap have as strong an argument for damages? I think not.... You see, promotions have very short lives usually. Like many artists. Sales are crucial when the iron is hot, so to speak. Decades from now, who will care about Madonna CDs?

-Rick

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You have no rights then[ Parent | Reply to This ] (none / 0) (#21)
by Seamless on Mon Jan 12, 2004 at 10:06:16 AM PDT

Rick, the end result of your post is that the person who is given the CD recording is given no rights, and the recording company could demand the recording back at any time. Further, if you are correct that promotional items cannot be sold, then logically a promotional item cannot be given to any other person since the original grant from the recording company was personal and not transferable. That means that the jeans buyer can't loan the CD to anybody, there is no right to give it as a gift, and it cannot be sold by her estate. If those restrictions aren't contained in a printed license for the end user to read and accept before purchase, there's no legal grounds to restict any form of distribution. It's obvious that Gap has no protectable interest in how the promotional item is further distributed or in any effect upon their sales, as Gap is not the copyright owner. I doubt that any court would agree that Gap can attempt to enforce rights that they do not have. As far as Gap is concerned, they only were hoping to achieve 1 sale by offering the copy of the promotional CD, and that was accomplished. After all, if Gap could somehow restrict the sale or distribution of a promotional item--which they do not own, and only had a license to distribute--then certainly, under your logic, Gap could restrict the distribution or resale of the underlying product (jeans), which only a judge nominated by GW Bush would allow.

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Parent Loan[ Parent | Reply to This ] (none / 0) (#31)
by Anonymous User on Wed Aug 30, 2006 at 08:21:20 PM PDT

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resale[ Parent | Reply to This ] (none / 0) (#96)
by Anonymous User on Thu Mar 20, 2008 at 12:46:10 PM PDT

between a media outlet and a record label or artist there is generally an agreement that prevents the resale or distribution of promotional items (of course there is a limit to the time that the promo item must be held). I think you made the exact point as to why the "artist" would want to remove the CD promotion from the Gap. There is no agreement with the shoppers not to distribute, or sell the CD. IMO Ebay should have stood up for its sellers

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