Record companies and the RIAA have been making some pretty strange arguments over the past couple years, and the courts have even bought some of them. Some courts have recently held that making a copy of a sound recording available - even if no one copies it - is a copyright infringement. But this latest one, really takes the cake, or perhaps as the labels would have you believe, receives the cake on a permanent loan.

Universal Music is involved in a lawsuit with Troy Augusto, a guy who makes his living by selling "promo CDs" on eBay. He buys them in used records stores or at other online sites. These are discs that may contain just a single song, maybe a remixed version of a song, or maybe the whole album. Record companies send these out to DJs and other radio station personnel, writers and critics, and pretty much anyone else they think might help them to sell their product.

According to Universal, they don't keep track of who they've sent them to, have never asked for the return of a single disc, don't expect anyone to return them and have never received a single return. But, like all the record companies, Universal stamps these discs "Promo Only - Not for Sale" or something like that.

Whether that notice is actually binding on anyone is the major question before the court. I tend to agree with those who say that the discs are a gift and the recipient, as the owner, can do anything but copy them. (Read the EFF memorandum here.) But I follow the other side's argument, to a point. But here's where Universal really steps off:

In their memorandum in support of their motion for summary judgment, which I quote, Universal discusses the disposal of promo CDs. (By the way, unauthorized distribution=copyright infringement in lawyer speak.)


In other words, Universal Music has asked the court to believe that throwing out a promo CD is copyright infringement.

Wow! Forget college downloaders! It's time for the RIAA to round up everyone who ever worked in radio. Round up everyone at Rolling Stone, the Village Voice, the New York Times... Round up every hipster and tastemaker on the planet. These people have deep pockets!

Back when I was the program director at my college radio station, we used to routinely throw out stuff like Air Supply and Little River Band. They were vinyl back then, but they were stamped "Promo Only." We joked about a violation of federal law, but we never thought it was the Copyright Act. We just thought it was the unauthorized disposal of hazardous waste.