A reader recently bought some jeans in a Gap store and with his purchase received a CD called ""Into the Hollywood Groove" with music by Warner recording artists Madonna and Missy Elliott. Having no interest in the CD, the reader proceeded to auction it off on eBay. But shortly after the auction had ended and he'd sent it off to the winning bidder, he received a disturbing e-mail from eBay.

A typical eBay "VeRO"notice, the email informed the reader that "a Verified Rights Owner (VeRO) Program participant notified us, under penalty of perjury, that your listing or the item itself infringes their copyright, trademark, or other rights ... We have also notified the bidders that the listing(s) was removed, and that they are not obligated to complete the transaction. If you relist this or any other similar items on eBay, your account likely will be suspended." The message identified Time Warner as the VeRO participant making the infringement claim and provided a link to eBay's VeRO participant page for more details.

The VeRO program is eBay's way of conforming to the takedown provisions of the DMCA (Digital Millennium Copyright Act), which requires an Internet host to quickly remove any material that a copyright holder claims to be infringing. Knowing he'd received the CD as part of a legitimate (and widely publicized) Gap promotion, the reader was naturally upset that his credibility as an eBay auctioneer could be damaged by having auctioned it.

He was even more perturbed when he followed the link to Warner Record's VeRO page. At the very top -- in 18-pt. red letters, no less -- it said: "MADONNA BREAKING NEWS!! PLEASE READ THIS MADONNA SELLERS!! We have been asked to remove ALL promotional CDs for the GAP campaign."

Assuming Time Warner wasn't accusing Gap itself of bootlegging the CDs, the only alternative explanation for removing all Gap CDs was near the bottom of the same page: "Some of our clients have asked us to remove PROMO ONLY items. Not all artists mind if PROMO ONLY items are sold, as you know. Some do mind. Keep in mind that PROMO ONLY means just that: for PROMOTIONAL USE ONLY, NOT TO BE SOLD. We have to respect the requests of the artists, if they want us to remove those items. Thanks for your understanding and cooperation."

Understanding and cooperation was not what this inspired in our reader. "How was I infringing on their copyrights?" he wondered. "There are at least over 10,000 used CD stores I could have sold this to. And Gap already paid the royalties to Time Warner so I do not see how this is a violation."

For the record, a Gap spokesperson described the CD as an "an in-store giveaway that you received as a free gift when you purchased a pair of cords or jeans" Gap contracted with Time Warner for the rights to distribute the CD for only a limited time, the Gap spokesperson said, and all rights have now reverted back to Time Warner. A spokesperson for eBay said the company believes "promotional CDs" represent a gray area of copyright law that has not been litigated, so under the DMCA eBay is required to honor Time Warner's request to take down the auctions of the Gap CD. Time Warner had not responded to inquires before deadline.

I need to make something clear here - it doesn't matter whether the label said "Promo Only" or "Not for Resale" or whatever. (The reader recalls that it was marked as a Gap promo, but he saw nothing about not re-selling it on the CD or in the store). Do you believe for a second that the Recording Industry Association of America would allow all those promotional CDs to be sold in stores if they thought a few lawsuits would stop it? The reason it hasn't been litigated is not because it's a gray area, as eBay says, but because the record companies know they would lose.

On this issue, copyright law is crystal clear, because there's this thing called the First Sale doctrine. The Copyright act (Section 109) states, "the owner of a particular copy or phonorecord lawfully made under this title ... is entitled, without the authority of the copyright owner, to sell or otherwise dispose of the possession of that copy or phonorecord." Sticking a "Promo Only" label on a CD holds no more legal water than a "Not for Resale" sticker on a book.

I should probably also point out that the Madonna/Missy CD isn't a promotional CD like those the record companies send out to radio stations. It wasn't promoting music; it was promoting jeans. And no doubt for some customers the CD was what they were really buying and the jeans were the "free gift." If Time Warner can tell our reader that he can't auction the CD because Madonna might not like it, why can't the Gap say he can't sell the jeans to a second-hand clothing store because the seamstress in an Asian sweatshop could object?

Of course, we mustn't stick with the fiction that this is really about "respecting the requests" of the recording artists. It's not Madonna or Missy Elliott who issued the DMCA takedown order for these auctions. Time Warner's legal eagles - "under penalty of perjury" -- made that decision. And it's the Gap that is letting its paying customers be treated like criminals when they have broken no laws. And it's eBay, which should be the greatest champion of the First Sale doctrine and secondary markets in general, that won't lift a finger to defend them against the DMCA's continuing assaults.

--------------------

Post your comments about this column below or write me directly at Foster@gripe2ed.com. To receive this column every week in my free e-mail newsletter, please go to my subscription page and follow the instructions to opt-in for the EdFoster mailing list.