Two years after an eBay.com seller won the right to sell promotional CDs a US appellate court has upheld the decision.
Basically the court said since the promotional CDs were not specifically ordered material, they could be considered a gift and disposed of as the recipient saw fit. This is in line with the 2008 ruling and leaves Universal Music Group with the option of taking its case to the U.S. Supreme Court.
The US decision doesn’t apply within the UK, and eBay UK still saying “eBay policy does not specifically prohibit the listing of promotional items, but you should be aware that many rights owners take the position that the listing of such items is a copyright infringement. Listing such items could therefore result in the ending of your listing if a member of our Verified Rights Owner Programme (VeRO) reports the items as infringing their rights.”
A recent case won by eBay against L’Oréal acknowledges that goods marked “not for sale” or “not for individual sale” supplied without charge to the trade mark proprietor’s authorised distributors are not put on the market in those circumstances. This means that in the EU such items could still be considered the property of the manufacturer, although this case applies to cosmetics and not to promo CDs.
Even though this case applies to the US and not the UK it’s still good to see a seller holding their own against a large corporation. Freedom to resell items that you legally possess appears to make logical sense, and for eBay traders the right to buy and sell legitimately acquired goods should be a basic freedom in today’s world.
2 Responses
Years ago I worked with a Magazine Publisher. He used to receive Review Copies of Books. When he sold out he gave me a number of these review copies rather than dumping them in the skip. They are not marked(sorry one of the Copies is marked as Not for Resale but all the others are not marked in any way). As they have been in my possession for at least 15 years(they were in a box in the far corner of the Store-Room) I wonder if they could possibly be affected by the ruling or ebays own rules. I have thought about listing the unmarked copies but not the marked copy(I sometimes use it for reference purposes). So I wonder if the ruling would affect any of them. As a matter of interest the Publisher still exists but has changed ownership several times since they were published)
And often times the big company wins. Autodesk recently won their appeal https://arstechnica.com/tech-policy/news/2010/09/the-end-of-used-major-ruling-upholds-tough-software-licenses.ars . I don’t believe you reported on this ruling when it happened but did report on the original.