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EFF Wins Promo CD Resale Case

Soulskill posted more than 6 years ago | from the this-promo-disc-will-self-destruct-in-five-seconds dept.

The Courts 252

DJMajah writes "Universal Music Group's case against Troy Augusto, fought by the Electronic Frontier Foundation, has been dismissed by a federal judge. UMG sued Augusto, the owner of Roast Beast Music, over 26 eBay listings of promotional CDs. UMG argued that promo CDs distributed for free to radio stations, DJs and other industry insiders could not be resold; the discs usually carry a label reading 'For promotional use only, not for resale.' UMG asserted the doctrine of first sale does not apply, as the discs were not actually sold and therefore remained UMG's property. The judge ruled that the doctrine does apply because the discs were gifts. The labels indicate no expectation of their return."

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Sheesh. (1, Insightful)

adolf (21054) | more than 6 years ago | (#23783179)

Allow me to be the first here to say: It's about fucking time.

Re:Sheesh. (4, Interesting)

herring0 (1286926) | more than 6 years ago | (#23783293)

Maybe I'm just overly hopeful, but it certainly seems to me that people in the legal system are begining to see just how ridiculous many of these 'flimsy' shrinkwrap/EULA/itsnotyoursitsreallyalicense type arguements are.

Wish in one hand...and you'll soon be washing them both

The EFF sure taught the industry a lesson! (4, Insightful)

Anonymous Coward | more than 6 years ago | (#23783189)

I'm sure in the future they will modify their labels to require the return of promo materials.

Go go EFF!

Re:The EFF sure taught the industry a lesson! (5, Interesting)

despe666 (802244) | more than 6 years ago | (#23783269)

Let them try. If they write that on that label, they will no doubt have to prove they actually recover the CDs they send, and it's not just there to get around the other judgement. And if the CD is sent unsolicited, then they will have to pay for the return fee or expose themselves to extortion lawsuits or something. Let them try to deal with that logistic nightmare.

Re:The EFF sure taught the industry a lesson! (5, Insightful)

Volante3192 (953645) | more than 6 years ago | (#23783339)

If the CD is sent unsolicited (through USPS at least) and they try to get it back, they get slammed for mail fraud.

That'll be a trick even for their kettle of lawyers to get out of.

Re:The EFF sure taught the industry a lesson! (5, Informative)

Ungrounded Lightning (62228) | more than 6 years ago | (#23783347)

And if the CD is sent unsolicited, then they will have to pay for the return fee or expose themselves to extortion lawsuits or something.

As I understand it: If it's unsolicited (and not the result of a shipping error or a fraudulent order by some third party) there is no obligation to return it, no matter what is printed on it.

Re:The EFF sure taught the industry a lesson! (1, Insightful)

Anonymous Coward | more than 6 years ago | (#23783355)

If they were sent through the US Postal Service & were unsolicited, they're now property of the recipient. They are under no obligation to return them.

Re:The EFF sure taught the industry a lesson! (1)

UnknowingFool (672806) | more than 6 years ago | (#23783357)

True. An unsolicited gift is not a contract and the giftor cannot impose obligations on the recipient.

Re:The EFF sure taught the industry a lesson! (0)

Anonymous Coward | more than 6 years ago | (#23783323)

There's already ample precedent that anything received in the mail -- unsolicited -- is a gift and is the recipients to keep.

I'm trying to remember what, if any obligation the recipient has if, e.g., the sender also sends a self addressed, postage paid return envelope.

Realistically though, a radio station that receives hundreds of promos can't honestly be expected to keep track of them all, can it?

Re:The EFF sure taught the industry a lesson! (5, Insightful)

adolf (21054) | more than 6 years ago | (#23783559)

Maybe.

Here's the thing:

If [insert RIAA member here] notices that I am a program director at a radio station and sends me a promo CD in the mail with my name on it, then it's mine. I can listen to it, sell it, throw it out, give it away, copy it to my iPod, dupe it for the car stereo, and set it on fire. About the only thing I can't legally do is give a copy to a third party (in violation of copyright law).

Merely receiving something in the mail does not obligate me to do anything that the sender asks. If the sender wants it returned, that's fine; they can want it all week and it'll still never happen.

I mean, imagine it if you will, AC: Suppose I sent you a CD with a label on it which said "Please return to avoid a $250,000 fine, 5 years in jail, or both." Worse, suppose such a CD gets lost in the mail.

Either way, you don't have to do a thing. Were things any other way, we'd see huge numbers of positively ugly scams circulating the USPS, where by inaction alone, simple homeowners would be victimized by their own fucking mail.

(I'm sure that one of Slashdot's resident lawyers can come up with some fancy polysyllabic Latin verbiage to exactly describe this non-problem, but for now you'll all have to grasp this concept without it having any specific title.)

Re:The EFF sure taught the industry a lesson! (0)

Anonymous Coward | more than 6 years ago | (#23784091)

it is a whole new business paradigm!
1. give people free stuff
2. ?
3. sue the people for getting rid of the free stuff
4. profit!

Re:The EFF sure taught the industry a lesson! (4, Funny)

gclef (96311) | more than 6 years ago | (#23784353)

postman hoc, propter hoc?

If I were to donate to any tech foundation (5, Insightful)

TheDarkener (198348) | more than 6 years ago | (#23783235)

it would DEFINITELY be to the EFF. What heroes they are, in today's world!

Re:If I were to donate to any tech foundation (4, Insightful)

JustinOpinion (1246824) | more than 6 years ago | (#23783377)

"If" ??

Why don't you donate?

Seriously, if you live in the US and you care at all about electronic freedom, then you should really do your part by helping the EFF fight the good fight. Discussing/complaining on Slashdot is great and all, but if we ever want things to change, we have to actually do something... or at least fund people who are doing something.

I donate to the EFF yearly. You should consider doing the same [eff.org] .

Re:If I were to donate to any tech foundation (3, Informative)

ivan256 (17499) | more than 6 years ago | (#23783501)

They make it really easy too. They can charge your card monthly.

Re:If I were to donate to any tech foundation (1)

spottedkangaroo (451692) | more than 6 years ago | (#23783607)

I have donated many times.

One time they sent me a bumper sticker I was really proud to wear (on my car); but the last time I donated, they did not.

I need a new bumper sticker for my new (well, used) car.

Re:If I were to donate to any tech foundation (2, Informative)

gsutter (41875) | more than 6 years ago | (#23783681)

Just email membership@eff.org and ask!

Re:If I were to donate to any tech foundation (0, Funny)

Anonymous Coward | more than 6 years ago | (#23783895)

Please, show me where I can examine their budgets and where all their money goes.

Thank you,

A potential donor.

P.S. This is non-negotiable. Give me a condescending answer and you're screwed. Got an attitude - you're screwed. You want money, kiss my ass and tell me why.

Mod me down and I'll screw the EFF over.

Welcome to the politics of a non-profit org.

Oh, Wha, wha wha!

Re:If I were to donate to any tech foundation (1)

SoundGuyNoise (864550) | more than 6 years ago | (#23784095)

I'm actually considering putting into my will that donations can be made to the EFF.

Re:If I were to donate to any tech foundation (0)

Anonymous Coward | more than 6 years ago | (#23784425)

Whats with everyone trumping the previous post? Is the next post below mine going to be "I gave my house" then another "I gave my house, my wife, and my kids"?

Re:If I were to donate to any tech foundation (4, Insightful)

Excelcia (906188) | more than 6 years ago | (#23784347)

Even if you don't live in the US donating is a good idea. Before I joined the Canadian Forces, I made several donations to the EFF. American law, as the recently proposed copyright law here shows, tends to lead to extreme pressure on Canada to "conform to international (read American) standards". If the nastiness can be confined at the source, it has less chance of making it North. Pull the teeth on the American laws before they spread.

And books? (5, Interesting)

TenBrothers (995309) | more than 6 years ago | (#23783249)

Will this then apply to books who have had their cover torn off and returned to the publisher? Most of those books carry a "if the cover is missing this book cannot be resold" blurb. Booksellers who can't sell a quantity of trade paperbacks return the front cover in lieu of the entire book for a refund. It saves on shipping and the publisher doesn't want the unsold books back anyway. So would these be considered 'gifts' to the bookseller, and presumably under this ruling also viable for resale?

Re:And books? (4, Informative)

Eivind (15695) | more than 6 years ago | (#23783313)

Nope. The paperbacks didn't afterall, turn up unsolicited in the mail of the bookstore. (if they did, they WOULD be gifts)

What allows the booksellers to rip and return the cover, destruct the rest of the book and get a refund is a CONTRACT they entered into with the publisher, in this contract they promised to destruct books whose cover they return. Thus if they return covers yet fail to destruct the books they're in violation of contracts, and will be held responsible for any damages arising from that.

Re:And books? (1)

TenBrothers (995309) | more than 6 years ago | (#23783431)

But that seems to be the gist of UMG's argument. That since first sale didn't exist (in their eyes) that there are damages to be had from a further sale. Since the publisher accepts that as a portion of the contract means that the books 'are made not suitable for resale' (that was the phrase in the contract I'd seen oh so many years ago), isn't that suitability relative to the fact that damages cannot be had in light of this ruling? That's my question. If these contracts (assuming they're the way they looked 18+ years ago, of course) render the book, at least the CONTENT of the book, is a non-entity as far as the publisher is concerned, then can't the bookseller, or whomever, resell this or trade this to their heart's content?

Re:And books? (5, Insightful)

ivan256 (17499) | more than 6 years ago | (#23783591)

There are two distinct situations here:

  - A bookseller signs a sales contract with terms before books are sent to said bookseller. These terms prohibit sale of books who's covers have been removed for refund. If the contract actually says "made not suitable for resale", the publisher would (successfully) argue that if any customer found the refunded book to have any value, the bookseller didn't sufficiently render it unsuitable for sale.

  - A radio station receives an unsolicited CD in the mail from a record label; the label hopes the radio station will play said CD on the air. The front of the CD says "Not for resale"

In the first case, there is a legally binding contract that the bookseller entered into requiring them to destroy the coverless book or pay the wholesale price of the book to the publisher.

In the second case, under US law the record label has used the US mail to give the CD to the radio station as a gift. The radio station is free to do whatever they want with it, as they are not bound by any contract, no matter what is printed on the outside of the disc.

Re:And books? (0)

Anonymous Coward | more than 6 years ago | (#23784327)

IP here.

Europe vs US.

You are trying to control the record deals that this band clearly did not have. They were trying to get signed, but you really do not understand the way that IP works over there.

IP.

This belongs to the band, but they want people to hear it. In the states, you have to send it to the companies, and they clearly control what is on the radio. That is clearly not the case in the rest of the world.

IP.

This shows on MTV, and the constant repeats that are all over radio.

Intellectual Property - People put thought into this, but they want people to hear it.

Re:And books? (1)

ivan256 (17499) | more than 6 years ago | (#23784423)

I think you replied to the wrong comment.

Re:And books? (1)

Taibhsear (1286214) | more than 6 years ago | (#23784545)

Exactly. I could send an RIAA lawyer a cd with "Receiving this cd means that I now own your soul." This does not in fact mean I own their soul. Nor does it mean that an RIAA lawyer even has a soul. I'm still waiting for a remake of the Wizard of Oz with Dorothy, the Tinman, the Scarecrow, the Cowardly Lion, and a RIAA Lawyer. At least the Wicked Witch would have some competition...

Oh and Toto too!

Re:And books? (1)

Knara (9377) | more than 6 years ago | (#23783595)

IIRC, part of the decision was that the "contract" that UMG alleged prevented the resale was not valid.

As far as I can tell, at least, the return clause for booksellers is more traditional and convenient than anything else. I imagine that if booksellers had another venue for recouping the wholesale price of unsold books, they could just as well go that route. Small businesses, for example, are just as able to put the book/unsold merchandise up on eBay as any other action.

Re:And books? (1)

Attila Dimedici (1036002) | more than 6 years ago | (#23783609)

No, the bookseller has already sold the book back to the publisher. When the bookseller sends the cover back to the publisher the publisher gives the bookseller a credit on their account equal to what thye would have paid for the book in the first place (minus "restocking fees" in some cases), this would be a completely different case.

Re:And books? (3, Informative)

johnw (3725) | more than 6 years ago | (#23783985)

What allows the booksellers to rip and return the cover, destruct the rest of the book and get a refund is a CONTRACT they entered into with the publisher, in this contract they promised to destruct books whose cover they return.
The verb for which you are hunting in vain is *destroy*, not "destruct".

HTH

Re:And books? (1)

cfulmer (3166) | more than 6 years ago | (#23784251)

Correct. And, the bookseller by ripping the covers off but not destroying the books is in breach of that contract.

But, here's the distinction: Suppose the bookseller breaches the contract and sells the books to somebody else ("Bob") without covers. And then when Bob tries to sell the book on ebay, the publisher comes after him. We know that the publisher has a breach-of-contract claim against the original bookseller. Does he also have a copyright infringement claim against Bob for violating the distribution right?

If the publisher's right of distribution was exhausted when he sent the books to the bookseller, then the answer is no.

But, I don't think it was because the publisher exercised control over the books even when they were at the bookseller. In particular, the bookseller restricts the use of the books by requiring unsold copies to be returned or, more commonly, destroyed (as evidenced by the front covers). And, the publisher actively pursues that goal. So, I'd suggest that the distribution right in books is really only exhausted when they're sold (1) to consumers or (2) to book wholesalers without the right of return.

Re:And books? (0)

Anonymous Coward | more than 6 years ago | (#23783413)

No, it won't apply to books, because of exactly the reasons you gave.

The publisher has not sold the books to the bookstore until they are actually sold (ie: They are sold on a commission basis).

The bookstore is directed to either return the books to the publisher (just as the judge would have said would have made the CD contract legal), or, at the direction of the publisher, destroy the books and dispose of them.

Now, there is the argument that public trash is public property, but that's a totally different argument. And I expect most bookstores don't use public trash anyways, they probably hire private waste companies, negating this issue as well.

That is what contract law is for (1)

snoopyjd (665929) | more than 6 years ago | (#23783481)

The bookstore only returns the cover and they agree by contract to take these in lieu of the entire book. If the bookstore sells the books anyway, the publisher should sue them for breach of contract.

If you buy the book it is yours.

Probably not. (1)

Ungrounded Lightning (62228) | more than 6 years ago | (#23783515)

Will this then apply to books who have had their cover torn off and returned to the publisher? Most of those books carry a "if the cover is missing this book cannot be resold" blurb[?]

Probably not. Promo records are spam. The arrangement between the publishers and the booksellers is contractual. Since the arrangement requires disposition of the remainder of the book in a way that keeps its content out of the market it can be argued that marketing the defaced book is conversion (think "stealing it for your own benefit"), making buying and owning it (knowing, from the missing cover, that it's not what the publisher intended) some variation on "possession of stolen property".

But IANAL so that's a guess.

Good catch!

Re:And books? (1)

TTURabble (1164837) | more than 6 years ago | (#23783555)

IANAL

I don't think this is exactly the same thing, when a bookstore returns the cover only it is assumed that the book has been destroyed or otherwise disposed of as that is industry standard practice when returning paperback books.

The coverless book is not considered a gift because they received compensation for return of the cover. If they were to go out and resell the coverless book, it would probably amount to copy write infringement because they should have destroyed the book when they returned the cover. Kind of like making copies of a CD and then selling them.

With that said, I have quite the collection of coverless books from my time working at a bookstore. :)

Re:And books? (0)

Anonymous Coward | more than 6 years ago | (#23783615)

Will this then apply to books who have had their cover torn off and returned to the publisher? Most of those books carry a "if the cover is missing this book cannot be resold" blurb. Booksellers who can't sell a quantity of trade paperbacks return the front cover in lieu of the entire book for a refund. It saves on shipping and the publisher doesn't want the unsold books back anyway. So would these be considered 'gifts' to the bookseller, and presumably under this ruling also viable for resale?

No, because there is a contract between the book retailer and the book publisher with these terms, and they both signed the contract.

A radio station never signed a contract with the music labels on what to do with the promotional CDs. If something you didn't order shows up in the mail addressed to you, it is yours. You don't have to send it back, you don't have to pay for it, and there is ample case law on that.

If the music label wants to restrict what the radio station can do with the CDs, then they should sign a contract to that effect before sending the CDs.

Re:And books? (0)

Anonymous Coward | more than 6 years ago | (#23784105)

No, silly sausage. In that case, the publisher is actually buying the book from the retailer, and it is no longer the retailer's property. Property doesn't have to be on my property to be my property, as it were. Otherwise, any time I took my iMac in for repair the service provider could be all like "oh, you left it there under the assumption that I couldn't just do what I wanted with it?? my bad! I'll see if that guy I sold it to just after you left gave me any contact details..."

Not that I've ever had to take my iMac in for repair. And my PowerBook is now 10 years old, and has survived a smashed case around the power/sound board. I doubt my iMac will last that long, though. I blame the prepending of 'i' to everything, from iPhone to Intel Core2Duo. Remember when they were Apple Computer? I guess since they settled with Apple Records they could go for the shorter name, but let's be honest - it's because SJ's getting old and sees more money in mass consumer "digital convergence". Much like Acorn, Amiga, etc ten years ago. Glad to see it worked for them.

Anyway, where was I. Ah yes, the EFF blue ribbon. This reminds me of the time I was accosted on a street in Madrid to wear a pink ribbon for breast cancer awareness. Just poked into my nip before I'd got my bearings. I think that'd be a fairly cool job - just being able to fondle random passers'-by (stick that in your pipe and smoke it, grammar Nazis!) chests and say "it's to help in the cure for cancer!" Which brings me to the red AIDS ribbons...

Re:And books? (4, Informative)

vux984 (928602) | more than 6 years ago | (#23784119)

Will this then apply to books who have had their cover torn off and returned to the publisher? Most of those books carry a "if the cover is missing this book cannot be resold" blurb. Booksellers who can't sell a quantity of trade paperbacks return the front cover in lieu of the entire book for a refund. It saves on shipping and the publisher doesn't want the unsold books back anyway. So would these be considered 'gifts' to the bookseller, and presumably under this ruling also viable for resale?

Yes and No. Mostly No.

Think about how that process works. You buy up a bunch of inventory. You then don't sell it and want to return it to get your money back. The publisher could just say screw you, you bought it, its your problem to sell. (And that's the case with a lot of books... and why there are those bins with hard covers for $1.00 in them.)

But some publishers with some titles for a number of reasons, give you the option to return the book for full or partial credit if it doesn't sell within a time frame. Of course, they don't really want the book back and it costs a bundle to ship heavy books around so instead they simply require you to destroy the book and they compensate you. The whole 'tear off and send in the covers' is just part of the 'auditing and accounting processes' to ensure disreputable dealers don't just claim they destroyed them and ask for piles of money back while selling the books. Plus by tearing the covers off and having the disclaimer in the book it renders the books nearly worthless even if they aren't destroyed, because a) the cover is missing, and b) consumers know that someone got paid to destroy these books and now is trying to sell them.

The book seller was essentially paid to destroy and discard them, if they didn't destroy them then they are in violation of their contract and liable to be sued etc. Its no different than you contract a company to come to your office to shred your documents, and then instead they take your documents and sell them on ebay, they are in serious violation of the contract. Same deal here.

So in most cases if you came into possession of such a book it would mean that the contract was not fulfilled and the publisher could seek damages from the book seller that was supposed to have destroyed it. If you worked at a book store and just kept copies for yourself, it gets messy, those copies could legally amount to stolen, and reselling them would amount to selling stolen property. If your being paid to destroy or discard something and you keep it, the question of whether its theft or not is complicated. Normally it would be ok... like if your boss said throw that printer away and you took it home instead. But if your boss said destroy this book of customer contact and account information and you took it home instead... that would be theft.

But here the illegality has really nothing to do with the cover being missing, or the disclaimer on the book, and everything to do with the fact that the publisher paid for these books to be destroyed and they weren't.

HOWEVER. ALL THAT SAID.

If you somehow legally came into possession of a book with its cover ripped off, you can sell it. You are not bound by any contract. Nor are you bound by the disclaimer on the first page about the missing cover.

If you bought a book and then tore its cover off for example you'd still be able to sell it without question. Or if you found it on the street that would be fine.

If you pulled it out of a dumpster that would really depend on the circumstances. It would probably be legal in most cases of simple dumpster diving... but illegal theft if it were a more systematic enterprise, especially if you were involved or related to the bookstore putting them there.

Re:And books? (1)

cjewel (760689) | more than 6 years ago | (#23784295)

The better analogy is not to books ordered by a bookstore-- that's clearly not at all the same thing-- but to ARCs (Advance Reading Copies). An ARC is the almost-final copy of the book with almost-final cover art (usually, but sometimes not) and cheapo binding. They go out to reviewers with a big note printed on the front that says "Not For Resale." Not only are ARCs given to reviewers, but they're sometimes given away to readers. ARCS of my August title were given away at Comic Con in NY this year. Publishers often send a nominal number of ARCs to the author who typically distributes them as he or she sees fit. I give mine to (ta-da!) bookstores. Most of the authors I know (but not all of them) get upset when ARCs show up on eBay, and they do land there often. I'm not sure why someone would rather pay for an ARC which is uncorrected and may have errors, when they could wait and get the final version used. Shrug. I'm finally at a point with my writing that my publishers are doing ARCs for my books. I don't really care if they end up on eBay. And now, since it seems to me ARCs would directly fall under this ruling, it's just as well that I don't care.

Re:And books? (-1, Flamebait)

monxrtr (1105563) | more than 6 years ago | (#23784443)

Notice that the book content industry doesn't care about the livelihood of your UPS and FedEx delivery man. It would be interesting to calculate the total weight shipped and total fuel burned from delivering information which can be digitally transmitted.

When are we going to start comparing people who purchase physical books, cds, DVDs, and software programs to SUV driving hogs, and indirectly funding terrorist foreign oil countries? It's a waste of time, resources, and environmentally unfriendly. Bookstores are unnecessary urban toxic dumps. Boycott them!

Please return this post ... or I'll sue you! (2, Funny)

trolltalk.com (1108067) | more than 6 years ago | (#23783265)

The judge ruled that the doctrine does apply because the discs were gifts. The labels indicate no expectation of their return

We can now expect to see them add a little "please return this CD to us when you're finished with it" to each promo disk.

Re:Please return this post ... or I'll sue you! (3, Funny)

j00r0m4nc3r (959816) | more than 6 years ago | (#23783407)

I don't think even that is enforceable. If you give something to someone unsolicited it's a gift and the recipient can do whatever they want with it regardless of whatever BS sticker it attached to it. I mean, why not put a sticker on it that says "Return after 30 days, along with $1000"?

Re:Please return this post ... or I'll sue you! (0)

Anonymous Coward | more than 6 years ago | (#23783423)

We can now expect to see them add a little "please return this CD to us when you're finished with it" to each promo disk.

You can't send someone something unsolicited and then impose conditions on their usage of it.

It's deemed a gift. There's case precedent for this.

Re:Please return this post ... or I'll sue you! (1)

rob1980 (941751) | more than 6 years ago | (#23783469)

That, or "please return this CD to us when the album is released" - otherwise everybody will just not "finish" using the CD. :)

Re:Please return this post ... or I'll sue you! (4, Informative)

uniquename72 (1169497) | more than 6 years ago | (#23783689)

Often, these promotional copies aren't sent out until AFTER release. When I was a lowly music store manager, labels fell all over themselves to shower me and my staff with promotional copies of just about anything that came out. This accomplished 3 things from the labels perspective:
  1. We'd use the CDs for in-store play, thus generating customer interest.
  2. Word of mouth advertising from our employees.
  3. Often, in exchange for free copies of the CDs, we'd let a label representative make a small in-store display of that or other recent/new/upcoming releases from that label.
I left that job with thousands of discs, which I sold at used stores for $1-$4 a piece -- nice severance package, if you can get it.

It's always struck me as funny that record companies get pissed about free music being available online, when they happily send music stores multiple free copies of nearly every new CD that comes out. I've often wondered how many tens of thousands of free copies of each major release get sent out. (I understand the logic -- quid pro quo and all that -- but it's still a strange practice.)

Re:Please return this post ... or I'll sue you! (2, Interesting)

Znork (31774) | more than 6 years ago | (#23784025)

It's always struck me as funny that record companies get pissed about free music being available online

Because they need someone to pay for all the free copies they send to the stores. It's not that strange really, it gets put in the 'marketing' budget, probably costs more money than they give to the actual artists (if it isnt just outright deducted from the artists part of the revenue), and then they can whine about how expensive it is to produce and distribute music.

Of course, this kind of waste only makes sense when you have monopoly rights; if there was actual competition they'd get undersold in a heartbeat and the practice would disappear or at the very least get minimized. But when you dont have significant pricing pressure then spending like this is useful. And with music it also has several further effects; if cd's get sent to dj's and stores will be reluctant to pay for music to play. If dj's, radios and stores expect to get their music for free then unsigned artists cant afford to compete.

So you get the consumers to pay for the limiting of their choices. Way to go for the promotion of the arts, eh.

Already happens. (2, Informative)

igorthefiend (831721) | more than 6 years ago | (#23783589)

They already do. I have a number of promotional CDs which explicitly state "This CD remains the property of MUSICCOMPANY and we can request that you return it at any time." In practical terms, they never actually do ask for it back, but presumably it gives them the option.

Re:Please return this post ... or I'll sue you! (1)

Knara (9377) | more than 6 years ago | (#23783629)

They can't. There's established law that unsolicited deliveries of items are legally gifts and don't need to be paid for or returned.

Re:Please return this post ... or I'll sue you! (1)

sorcerykid (1071850) | more than 6 years ago | (#23784193)

So let me see if I understand the logic correctly.

If I have a coworker who enjoys watching movies, and I graciously loan him some DVDs that I've rented from the local Blockbuster store -- including a legal notice attached that they are only on loan and that no transfer of ownership is taking place because they are on rental from Blockbuster -- then he suddenly has the legal right to resell those DVDs on eBay because they automatically assume the status of a "gift" because he hadn't actually solicited them from me.

It's a bit circuitous, but I think I shall test this theory out as an easy way to acquire property that actually belongs to others by having them loan it to me without my asking. There is no wrongdoing after all, because the lender (my friend) gave it to me unsolicited with the understanding it would be returned. And the recipient (me) is protected by a legal doctrine that apparently nullifies contracts attached to unsolicited gifts.

--Randall

Re:Please return this post ... or I'll sue you! (2, Informative)

vidarh (309115) | more than 6 years ago | (#23784343)

If you get them to mail it to you, and you truly did nothing to solicit it, then yes, you'd be legally protected. Which doesn't sound very likely.

Re:Please return this post ... or I'll sue you! (0)

Anonymous Coward | more than 6 years ago | (#23784459)

It'd work, although the friends concerned would probably break important bones over the matter.

So, they're gonna start asking for the discs back (1)

Reality Master 201 (578873) | more than 6 years ago | (#23783277)

There goes promotional copies of CDs that reviewers keep, I guess.

Re:So, they're gonna start asking for the discs ba (3, Insightful)

Ungrounded Lightning (62228) | more than 6 years ago | (#23783379)

There goes promotional copies of CDs that reviewers keep, I guess.

Not if they want a good review. B-)

Re:So, they're gonna start asking for the discs ba (1)

JustinOpinion (1246824) | more than 6 years ago | (#23783543)

The promoters don't have much choice. Either they:
  • Send unsolicited promotional copies to various parties. But unsolicited merchandise through the mail [usps.com] is presumptively a gift. So the people will then own the promotional copy, and have the right (as this recent ruling affirms) to resell the item. It would be fraudulent to mail things that say "you must pay for this!" or even "you must return this!" (thereby forcing people to pay postage for things they never requested).
  • First send out a letter asking the recipient to sign a contract, where they agree that upon receiving the promotional item, they will return it, and agree not to resell or give it to others. This would work, but would be onerous for both parties. In particular, the vast majority of people wouldn't bother with that kind of hassle.
The promoters need to make it easy for the intended recipients to get the promo and to hear it. So I doubt they will use the second option (although I suppose a large company could try to get many outlets to sign a blanket contract that will cover all promos thereafter sent to them). In the end, they will just have to accept the fact that the promotional material can be transferred, bought, and sold, like anything else.

you're forgetting option 3, of course (2, Interesting)

Reality Master 201 (578873) | more than 6 years ago | (#23783779)

Get congress to "fix" the law so that they can send promo copies which are not presumed to be gifts.

Yay!

Re:So, they're gonna start asking for the discs ba (1)

FLEB (312391) | more than 6 years ago | (#23783875)

Really, the "contract" isn't as much of a hassle as you make it out to be. All it has to be is a one-liner in any other sort of "sign-up" or agreement saying that you want to sign up for promos but won't sell them.

Re:So, they're gonna start asking for the discs ba (1)

sorcerykid (1071850) | more than 6 years ago | (#23784389)

Is a contract even necessary? Merely requesting a promotional CD means that it is no longer being sent "unsolicited." Therefore, you as the promoter are not entitled to protection under the Postal Reorganization Act. Further, a reasonable legal notice attached stating that no transfer of ownership is taking place would likely be an enforceable contract in and of itself.

--Randall

Re:So, they're gonna start asking for the discs ba (0)

Anonymous Coward | more than 6 years ago | (#23783753)

No, they can't; that's the whole point.

If it's unsolicited, it's legally considered a gift, owned by you, and they can't put terms and conditions on your use of it.

They can't tell you not to sell it, they can't tell you to return it, they can't tell you to pay for it if you keep it... they can't tell you how to use it!

Aww the EFF Won? (5, Funny)

CogDissident (951207) | more than 6 years ago | (#23783279)

I'm actually a bit sad that the EFF won on this case. Because if it hadn't of been overturned, you could label "anything" as no-resale and send it to someone. Like, you know, that giant pile of bricks or the entire output of a nuclear reactor and mail it to the RIAA.

Because, with the policy they were trying to establish precedent for, you could do so, mark it as no-sale and no-disposal, and force them to build warehouses to store the random crap you send them.

Re:Aww the EFF Won? (5, Funny)

Paranatural (661514) | more than 6 years ago | (#23783433)

As fun as that would be, I could see a few problems with it:

1) I'd lose my job - The warehouse would start to question why I always had my Jeep full of boxes and barrels to ship out to CA, and would complain about the shipping charges.

2) I'd be arrested - After plundering every Goodwill dropoff area (a.k.a. 'Round back') for weeks on end for used underwear and rugs that have seen more cat urine than most litter boxes.

3) The ASPCA would track me down - After stealing several monkeys, which I would train to fill buckets full of monkey semen to send to the offices of the lawyers for the RIAA. Imagine hundreds of barrels of monkey semen, all no-resale and no-disposal. Think about it.

I am.

And I need a bucket.

Re:Aww the EFF Won? (3, Insightful)

gEvil (beta) (945888) | more than 6 years ago | (#23783719)

1) I'd lose my job - The warehouse would start to question why I always had my Jeep full of boxes and barrels to ship out to CA, and would complain about the shipping charges.

Why would you be shipping them out to California? The RIAA is located in DC.

Finally! (4, Funny)

spun (1352) | more than 6 years ago | (#23783735)

Now I know what to do with all my dead monkeys! [redhat.com]

Re:Aww the EFF Won? (1)

CogDissident (951207) | more than 6 years ago | (#23783463)

entire Waste output

Re:Aww the EFF Won? (1, Funny)

Anonymous Coward | more than 6 years ago | (#23784089)

Oh I dunno, the entire electrical output for say a year, delivered in a a single burst, would work too.

"Who ordered this giant capacit*SHZZZZZZZZZK*"

Re:Aww the EFF Won? (0)

Anonymous Coward | more than 6 years ago | (#23784107)

funny either way, really - The RIAA would be much more useful as an electrocuted molten pile of slag.

Re:Aww the EFF Won? (1)

Chrontius (654879) | more than 6 years ago | (#23784493)

They can also have the rest of the output, in the form of a high-energy (frickin') laser beam.

Re:Aww the EFF Won? (1)

Sta7ic (819090) | more than 6 years ago | (#23783711)

I'm not sure if the EPA, DOE, or USPS would slap you harder for sending radioactive waste through the mail, but it'd be pretty funny to see. I hear the USPS spooks mean business, and even the ninjas wake up in a cold sweat after USPS spook nightmares.

Re:Aww the EFF Won? (1)

Thelasko (1196535) | more than 6 years ago | (#23783857)

Because if it hadn't of been overturned, you could label "anything" as no-resale and send it to someone.
Nope, adverse possession [wikipedia.org] applies to real property. If it's real property and not imaginary property, it becomes theirs after a specified period of time. They can then do whatever they want with it.

Good news (3, Informative)

Anita Coney (648748) | more than 6 years ago | (#23783291)

I used to work at a music store in my youth and selling promo CDs is what got me through college.

Re:Good news (1)

Alzheimers (467217) | more than 6 years ago | (#23783571)

That's funny -- buying used promo CDs (3 for $5) in the small local music store is how I got most of my music in college.

Did you work in Hoboken by any chance?

Re:Good news (1)

Anita Coney (648748) | more than 6 years ago | (#23783731)

No, but that is funny. Thanks!

Re:Good news (1)

Alzheimers (467217) | more than 6 years ago | (#23783929)

Oh well. Cheap music is still ftw.

The only downside is that now CDDB doesn't recognize most of them :(

I always wanted to ebay some of those freebies (1)

elangomatt (784942) | more than 6 years ago | (#23783297)

At the retail store I worked at after high school, we got freebies and stuff promoting movies and I was always curious as to what would happen if I tried to ebay the buttons and stuff for some extra money. I never bothered though because of the 'not for resale' message on the freebies. Its great to see someone get a victory about anything against a music company!!

two words you don't see too often (1)

nomadic (141991) | more than 6 years ago | (#23783307)

"EFF Wins"

Re:two words you don't see often enough (1)

Collective 0-0009 (1294662) | more than 6 years ago | (#23783567)

There, fixed that Subject for ya.

What do you do with them? (2, Informative)

Thelasko (1196535) | more than 6 years ago | (#23783351)

I worked at my high school's radio station. We received tons of promo CD's. Very few of them turned out to be hits. We had stockpiles of CD's nobody wanted. They just piled up for years. We were always worried that the record companies were going to ask for them back, so we had to keep them.

Ultimately, we decided that the record companies weren't going to ask for the really old ones, so we gave away as many as we could, and threw the rest away. It was kinda sad to see all of that waste.

What? (4, Funny)

liquidpele (663430) | more than 6 years ago | (#23783387)

The RIAA didn't walk away from the case and then try to re-sue using a different judge this time?

Tim Russert (-1, Offtopic)

konberg (1117029) | more than 6 years ago | (#23783509)

Tim Russert died from heart attack. We learn it from TV news, but nothing can be found on Internet!

Re:Tim Russert (0)

Anonymous Coward | more than 6 years ago | (#23783633)

You obviously didn't check Wikipedia. The Tim Russert [wikipedia.org] article had news of his death thirty minutes before you posted.

ok, this one's idiotic for a change (0, Troll)

holophrastic (221104) | more than 6 years ago | (#23783767)

I'm all for being able to sell what you have. First sale is important and generally a good thing. This time, the law went the wrong way.

The reason the discs were sent out was not as a gift. It was sent as cross-promotional material -- something that both the sender and the receiver desires. Radio stations play them to attract listeners to ads. It's cross-promotional always. The radio doesn't have to play it, and by all means destroy it if you like. But selling something that's clearly meant for bi-directional corporate benefit is just plain bad for society.

The reason the discs weren't marked with instructions for tehir return is because they were on disposable media. The media being nothing more than a conveyance. And in this world of electronic distribution, there is nothing tangible to be returned.

There needs to be some way to send something to someone without sending it to the world. I don't care what that technique is, just tell me what it is. Some way for me to send my recording to you, without giving you the right to profit from it, or to publicize it.

Otherwise, without such a technique, the world becomes a very different place. Initially better for consumers and worse for businesses, then worse for employees and better for employers then better for businesses and worse for consumers. As is the general cycle of things. Now I'm an employer and a business owner (actually two businesses now). I'll be happy in the long run, but I don't want to suffer through that initial phase.

Re:ok, this one's idiotic for a change (3, Insightful)

robo_mojo (997193) | more than 6 years ago | (#23784019)

There needs to be some way to send something to someone without sending it to the world. I don't care what that technique is, just tell me what it is. Some way for me to send my recording to you, without giving you the right to profit from it, or to publicize it.
If you had such a technical solution, you could become a multi-billionaire overnight (or killed, perhaps).

But such a technical solution doesn't exist. In any case there must be a strict trust relationship from both sides for it to work. Either that, or rabid lawyers threatening each other into submission.

Otherwise, without such a technique, the world becomes a very different place.
Different, how? It is the world we live in, now. In this world, DRM is inherently a failure, and you can't tell people how to use the CDs you mail them. That's the way it must be.

Re:ok, this one's idiotic for a change (2, Interesting)

holophrastic (221104) | more than 6 years ago | (#23784345)

I didn't mean a technical solution, I meant a legal one. Something as simple as a well-publicized phrase that simply entitles the receiver to use it but not sell it. I'm thinking of consumer-level comman legal contracts in the same way that the GPL's brought common legal contracts to software development.

As for "it's the world we live in now" I disagree. We've only had there DRM problems for a few years, we're not locked into this situation yet. I don't want to see us wind up in exactly the situation that you're describing, but as a long-term problem.

In general, I think that's the solution to 95% of consumer-level legal problems -- to simply have a collection of well-publicized legal agreements, also for small business-to-business relationships, with very standard phrases, interests, causes, and solutions. Along with that comes very standard ways of enforcing them. Basically expanding the concepts of "small claims court" into something that covers basic contract agreements.

Exactly Wrong (3, Informative)

Fieryphoenix (1161565) | more than 6 years ago | (#23784175)

The law is clear. If you choose to mail something to someone that they did not ask for, it becomes their property. End of discussion. Done. Sending it through the mail, unsolicted makes it a gift.

Whatever idea you had in your head that prompted you to mail it makes no difference to the law. The recepient didn't ask you for it, you sent it anyway for whatever reason. Bing bam boom, it's theirs now. It doesn't matter if they want it or not. It doesn't matter if it's cross-promotional.

There is a way to send something to someone without sending it to the world. You contact them and say "If you agree to my conditions, I will send it to you." Then, if they agree, you send it, if they don't, you can't send it anyway and bind them to your wishes. I can't emphasize how fundamentally important that is... no one can force someone else into a contract.

Re:Exactly Wrong (2, Interesting)

holophrastic (221104) | more than 6 years ago | (#23784555)

Yeah, I hear that, and you're certainly correct. But it's one of those scenarios that doesn't scale well. In a world of dissemination, you can't call the receiver, and reach someone who is capable of agreeing to those terms (as in they don't represent the company), and get that agreement within a reasonable time-frame so as to not render the transmission obsolete.

I imagine the law was built in a time where you spent months or years developing something, a few days with the agreement, and a few days with the transmission. So if the agreement took one day or five days, it was inconsequential to the entire multi-month process.

Today, we're talking about days or weeks to develop something, a few weeks with the agreement, and a few seconds with the transmission. Now the agreement being one versus five days is a huge ordeal, and weeks makes it the most substantial portion of the process. That's why the law, or the way that the law is followed, needs to be adjusted. Perhaps with nothing more than highly-publicised standardized agreements, that are accepted or declined upon delivery. I don't know.

For example, my corporation is developing a kiosk -- whatever a copmuter in a box. We have to meet, among other things, electrical safety laws. One of which is that no one even close to human should be able to stick a finger through an opening and reach anything of any decent voltage -- we actually have to stop people from intentionally commiting suicide by breaking the box open with any reasonable amount of force. That's all fine.

But we can't even use standard computer fans -- because they aren't impedence protected. That means that where Dell gets to use $3.00 fans, we have to use $25.00 fans. Dell gets to certify their million dollar factory. We have to have individual units evaluated (because our quantities are not anywhere near high enough to warrant destructive testing).

The law is from 1976.

2008 represents an interesting age in human history. We're at that point where industries evolve and turn over faster than laws can be matured to meet those industries. As a result, my kiosk industry is actually built on the basis of companies not following the law. For example, your CSA-certified Dell computer is no longer CSA-certified when you replace a fan, or a power supply. That's fine when you do it. But when Future Shop does it for you, it's illegal unless they have a government inspector evaluate the machine in its entirety after the repair. Do you think they do it? If they don't, it's entirely illegal for you to even plug it into the city power grid, and it's also illegal for Future Shop to give it back to you.

1976.

Re:ok, this one's idiotic for a change (1)

AndyG314 (760442) | more than 6 years ago | (#23784235)

If the record company wants the information on a disk to remain their property perhaps they shouldn't send it out in unsolicited mailings. If they were only sending the cd's to people who had agreed to not distribute them before hand that would be one thing. Think of the requirements this puts on the recipient if the cd can remain property of the record company, it would be a huge pain in the butt. There is a way for the record company to require that the information remains secret, get the other party to agree to it before hand.

Re:ok, this one's idiotic for a change (1)

Knara (9377) | more than 6 years ago | (#23784261)

There needs to be some way to send something to someone without sending it to the world. I don't care what that technique is, just tell me what it is. Some way for me to send my recording to you, without giving you the right to profit from it, or to publicize it.

It's called a contract (which has good legal foundation) or DRM (which is easily breakable).

The fact of the matter is, in this case, the samples were sent unsolicited and as such, were gifts. That's old, established precedent.

Even if you sell me something, I can resell it. That's it. If you don't like it, don't sell me anything. It is often the case that I can't copy it, retain the original, and sell the copy (or vice versa), but I *can* sell the original so long as I don't retain a copy. Doctrine of first sale. Deal with it.

Re:ok, this one's idiotic for a change (1)

Rary (566291) | more than 6 years ago | (#23784311)

You might have a point if there was an agreement between the two parties. However, in this case the CDs were unsolicited.

The fact that the recipient can potentially benefit from receiving them is irrelevant. They weren't asked for, there was no agreement between the parties, and therefore they were an unsolicited gift. The recipient can do as they please with them.

Re:ok, this one's idiotic for a change (1)

gclef (96311) | more than 6 years ago | (#23784331)

There needs to be some way to send something to someone without sending it to the world. I don't care what that technique is, just tell me what it is. Some way for me to send my recording to you, without giving you the right to profit from it, or to publicize it.
There is such a way: it's called a contract.

In lieu of a contract, anything you send someone unsolicited is a gift.

What does your dream have to do with this case? (1)

benjamindees (441808) | more than 6 years ago | (#23784375)

You have managed to contradict yourself twice in a single post.

Radio stations play them to attract listeners to ads. ...
Some way for me to send my recording to you, without giving you the right to profit from it, or to publicize it.
In this case, the radio stations are both profiting from and publicizing the music that was given to them.

And your proposal is that the legal system should recognize Indian giving?

In fact, the legal system does recognize a form of Indian giving. But that requires a contract. Which requires the consent of both parties. Which can't possibly occur via a one-way transmission of goods. So, thankfully, giving something unsolicited to someone else is still considered a gift, and by the most basic logic, always will be.

Re:ok, this one's idiotic for a change (1, Insightful)

Anonymous Coward | more than 6 years ago | (#23784381)

The reason the discs were sent out was not as a gift. It was sent as cross-promotional material -- something that both the sender and the receiver desires. Radio stations play them to attract listeners to ads. It's cross-promotional always. The radio doesn't have to play it, and by all means destroy it if you like. But selling something that's clearly meant for bi-directional corporate benefit is just plain bad for society.

The reason the discs were sent out is irrelevant. The means in which they were sent is what matters; they were unsolicited and sent via USPS. There are clear cut laws that state sending items in this manner are presumptive gifts. If this is something that both parties truly desire then the sender should have an opt-in method of some form that states the terms and conditions related to receipt of the discs. Allowing anyone to send something to another party and force them into contractual terms without prior consent is bad for society.

The reason the discs weren't marked with instructions for tehir return is because they were on disposable media. The media being nothing more than a conveyance. And in this world of electronic distribution, there is nothing tangible to be returned.

It is not the responsibilty of the recipient of unsolicited materials to divine the intentions of the sender for items regardless of the media they are transported on. Also, the labeling on the disc does not matter, as it is superceded by being a presumptive gift.

There needs to be some way to send something to someone without sending it to the world. I don't care what that technique is, just tell me what it is. Some way for me to send my recording to you, without giving you the right to profit from it, or to publicize it.

That is why we have contracts and solicitation. If you want to send something to someone and define terms of how they will use said item, you need to contact them before hand and enter into an agreement. Or present an option for people to opt-in to the things you wish to send so that they agree to your terms before you send it to them. Otherwise I could, theoretically, send you a CD that has labeling that states by receiving this you are required to pay me $1000.00 US for reading the label.

Re:ok, this one's idiotic for a change (0)

Anonymous Coward | more than 6 years ago | (#23784409)

The reason the discs were sent out was not as a gift. It was sent as cross-promotional material -- something that both the sender and the receiver desires.

The fact that both might desire it doesn't change the fact that it arrives unsolicited in the mail.

I might want a new TV. You learn somehow that I want to buy a new TV. You can send me unsolicited brochures about how wonderful your store's TVs are in the mail. I can do whatever I want with the ads: burn them, sell them, or give them away. You can not control in any way, shape or form what I with the ads. I can burn them, eat them, throw them away, or give them away to someone else.

Your store now sends me a new TV, then sends an invoice. I OWE YOU NOTHING SINCE I DIDN'T ORDER A TV FROM YOU, even if it is a top quality plasma screen at a ridiculously low price that I might have bought anyway. There is ample case law on this. If you don't like it, don't send random goods in the mail.

But selling something that's clearly meant for bi-directional corporate benefit is just plain bad for society.

Bad for society? That's a very vague term. I think it's good for society that I can't send you a TV in the mail then make you pay for it. Otherwise I'm going to send you a lot of TVs then sue your ass off for not paying for the TVs.

The reason the discs weren't marked with instructions for tehir return is because they were on disposable media.

Disposable? CDs are not disposable. The music industry has spent lots of money trying to convince consumers that CDs last forever (well, nearly forever - much longer than tapes & records).

The media being nothing more than a conveyance. And in this world of electronic distribution, there is nothing tangible to be returned.

Of course there is something tangible to return. The physical CD, the same thing they sent.

There needs to be some way to send something to someone without sending it to the world. I don't care what that technique is, just tell me what it is.

It already exists. You know what that's called? IT'S CALLED A FUCKING CONTRACT YOU MORON!

Think a little bit, will you?

Re:ok, this one's idiotic for a change (1)

vidarh (309115) | more than 6 years ago | (#23784515)

I don't care what that technique is, just tell me what it is

It is called "asking the recipient to confirm that they agree to the terms before mailing out the discs".

That's all it takes: The moment the recipient have agreed to abide by certain terms in order to receive the disc, then the sender would have a legal claim if they try to resell it.

To see why this was the RIGHT ruling, consider this: If a sender could enter you into a contract just by sending you an item, people would start just shipping you random items with a "contract" requiring you to purchase the item from them at outrageous prices, and any number of stupid things like that.

Significance of this case? (2, Informative)

seanadams.com (463190) | more than 6 years ago | (#23783893)

OK, so common sense prevailed and the EFF won. That's great, but what is the significance of this case? Is there actually a big problem with people getting hassled for giving/selling promo CDs, or am I missing some other broader implication as a result of this decision?

Re:Significance of this case? (1)

poot_rootbeer (188613) | more than 6 years ago | (#23784201)

Is there actually a big problem with people getting hassled for giving/selling promo CDs, or am I missing some other broader implication as a result of this decision?

This decision affirms a principle that most of us would consider self-evident: if you give something away, you can no longer claim to own it.

Re:Significance of this case? (1)

LehiNephi (695428) | more than 6 years ago | (#23784267)

You're right that this particular case does not seem to affect many people. I think this is more of a "Woohoo! The RIAA lost a stupid lawsuit!" story.

Nevertheless, there are some broader, less obvious implications. Besides the illegality of sending someone something in the mail and then demanding it back, it can be seen as supporting the first-sale doctrine. Some also see it as a step towards the eventual invalidation of shrink-wrap licenses, but I think it's a bit early and far-removed to take it that far.

New law required (0)

Anonymous Coward | more than 6 years ago | (#23784117)

We need to replace all current laws with just one law.

"Don't be a fuckwit"

It would work perfectly, I challenge anyone to come up with a criminal offence that wouldn't qualify as being a fuckwit, theft, murder, driving stupidly, blaring your music after midnight, everything from capital offences to misdemeanours are covered easily.

And the best part? Trying to abuse loopholes or shitty legal definitions qualifies as being a fuckwit! So does assigning sentences or penalties not in line with the crime.

Its the perfect system! Theres no flaws in in to exploit since doing so would make you a fuckwit for trying to get around the system!

The EFF in 100 years (0, Flamebait)

Idiomatick (976696) | more than 6 years ago | (#23784303)

The EFF won't look like the heroes they are in 100 years. They will look like a glorified joke ... like a historical version of states the obvious man. All their victories are like this one. 'EFF convinces world you cant sue people for receiving gifts you sent them in the mail.' just doesn't sound that heroic does it.

Re:The EFF in 100 years (2, Insightful)

digitrev (989335) | more than 6 years ago | (#23784435)

Yes, but in the legal world, it's easy to convolute things to the point where you need Captain Obvious to point things out. I know for a fact that I've overcomplicated things by thinking too hard, when the answer was right in front of me. And the real issue isn't that their victories are so blindingly obvious, it's that if they lost these issues, we'd live in a world where things were incredibly obscure and difficult to navigate. A spade is a spade, and we need to call it that, especially when there are people calling it a "manual earth removal and placement device". Plugging up these loopholes makes it so that the law can be obvious, especially in the places it needs to be.
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