Author Topic: First Sale Doctrine - Who Really "Owns" Movie Posters?  (Read 6828 times)

Dread_Pirate_Mel

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First Sale Doctrine - Who Really "Owns" Movie Posters?
« on: April 29, 2012, 09:17:27 AM »
The guy who sold me a set of DS Black Swans has been banned from eBay because Fox complained about his sales of Fox materials.  A while back we had a discussion in the mid-auction thread, which I'm going to re-post in hopes of clarifying this issue.

Dread_Pirate_Mel

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Re: First Sale Doctrine - Who Really "Owns" Movie Posters?
« Reply #1 on: April 29, 2012, 09:20:11 AM »
you realise we aren't supposed to own movie posters right?

Of course you can own movie posters under the first sale doctrine under US law.  You can also sue any dealer who misrepresents the originality of a movie poster.  Those issues are not impediments to taking out the tloces of the world....

Mel,

The issue with first sale doctrine as it relates to new posters, the studios claim at NO point are the posters ever legally sold, and if any theaters paid for posters to use at the theater, that was basically a rental fee and at no point was ownership transferred. If you could put a case together proving other wise, I would absolutely love to shove it as far up Fox's hole as possible.

I've read the pleadings in Disney's lawsuit against MovieGoods. MovieGoods claimed it was lawfully selling original posters per the first sale doctrine. Disney never contested that MovieGoods had the right to sell original posters per the first sale doctrine. Disney only contested the sale of reproductions. They settled the case. MovieGoods agreed not to sell unlicensed repros of Disney's posters but the settlement did not limit the sale of original posters.

That case is significant because it's perhaps the only reported case where a studio directly asserted its rights with respect to movie posters. (Fox was also a plaintiff in that lawsuit).

Aren't the pre-1990 posters technically owned by National Screen Service, a now defunct company?

Yes NSS originally owned the posters but per the first sale doctrine any ownership rights extinguished once they were sold by theater employees or poster distributors to collectors or dealers.

This is interesting, I never followed up to see the case outcome. The problem I forsee if at some point if pushed you have to reveal a source who had authorization to sell.

Would a receipt from a seller and a referal to:

 UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

Case No. CV09-4968 SJO

be enough to get them to layoff.

Dale because you a dealer your legal concerns are different from those of a downstream collector who is several times removed from the original transfer of the posters. Clearly collectors can sue a dealer who knowingly misrepresents a poster as an original when that dealer knows it is a reprint or bootleg.

I am going to send a mail to fox's ip team to see what they have to say  :)

I agree Mel, I have been laying low on Fox for years now and only putting up one or 2 after a film releases, then they hit me on Titanic last month which is a co-production with Paramount and I believe they only have influence in the foreign market in I remember correctly?. Infuriating to say the least.


I don't see how the first sale doctrine applies here.

Based on my reading of the law, it would only apply to lawfully owned and obtained copyrighted material by the first party. In other words, if someone purchase a painting, picture, book, record, tape, cd, dvd, software, etc., the copyright holder can not restrict the lawful owner from transferring their ownership rights (permanently or temporarily) to another individual.

The problem is, these posters were never legally owned by the person or persons that initially gave them away. If the NSS "loaned" the posters to a movie theater, and someone there gave away the poster instead of returning it, that's basically theft. Selling it to another individual does not negate that fact. Fruit from the poisonous tree in a sense. The same rationale would apply to posters given to someone by an employee of NSS who wasn't authorized by the company to transfer ownership.

So unless the poster was purchased or otherwise legally obtained from the original copyright holder (ie: the studio or NSS), any subsequent sales or transfers could still be invalidated.

Well, Technicolor bought NSS and all its IP in 2000, so I would assume they own the rights.  Doubt they care.  Also, since the NSS liquidated its own warehouses and sold the bulk of what we are now trading to collectors and dealers, I would think that this would re-enforce Mel's position on first sale doctrine for the NSS material.

The proof is in the pudding of course. Neither Disney nor Fox ever contested Moviegood's ownership or right to sell original posters and it openly continues to do so to date.

I'll download the pleadings again but I distinctly recall that Disney agreed that MovieGoods had legal ownership of its original posters per the first sale doctrine.

Ok, well I guess if NSS actually liquidated their poster collection to individuals, that would fall under the first sale doctrine.

Regarding the enforcement of their rights, I know with trademarks, if the holder doesn't actively enforce and regulate it's usage they can actually lose the rights. This is why Google doesn't want people to verbalize their IP (ie: "go google something"). If they let people use it, especially in the common vernacular, they could lose the trademark. I don't know if copyright law has a similar caveat.

Which they did.  The majority of what currently circulates (apart from more modern posters) are from these warehouse liquidations...

Other sources are finds in old theatres and in the roofs of attics ;)

Went back and read the Disney/20th Century Fox v. MovieGoods pleadings.

MovieGoods argued that pursuant to the first sale doctrine it had the right to sell promotional posters printed by Disney/20th Century Fox that it bought from theaters or poster distributors.  MovieGoods argued that the "first sale doctrine" did not require a monetary "sale" but rather a "transfer of title" that occurred when the studios distributed the posters to theaters.

Disney/20th Century Fox did not dispute that argument.  Disney instead went after MovieGoods' reproductions:

Under the first sale defense, Defendant [MovieGoods] must prove that (a) the copies were lawfully manufactured with Plaintiffs’ authorization; (b) Plaintiffs transferred title to the copies; (c) Defendant was the lawful owner of the copies; and (d) Defendant lawfully sold the copies.... Defendant fails on the very first element of its purported defense because the posters sold by Defendant were not lawfully manufactured with Plaintiffs’ authorization.... Defendant does not dispute that it possesses an entire department devoted to imaging with several printers capable of printing both small and large movie posters. Defendant also acknowledges that it scanned and printed movie posters. Defendant then asserts that while it printed certain posters, it did not print any of the Plaintiffs’ Works. Defendant, however, cannot put forth any evidence regarding the specific source of each of its posters and has acknowledged in deposition that it cannot determine whether or not a particular poster was printed by Defendant, thus creating an inference that Defendant manufactured the posters itself.


Ultimately the parties settled by entering into a Consent Decree that allowed MovieGoods to continue selling posters as permitted by the first sale doctrine but banning them from selling reproductions of the plaintiffs' posters.

Sorry, but I don't think you're right Mel.  First sale doctrine applies to something that is put into commerce by a seller.  So, if the record company sells a CD, the first sale doctrine permits that buyer to resell the CD.

It does not apply to something that was not intended to be put into commerce.  So, if a distributor gives the posters away to a theater, then there's an argument that the first sale doctrine permits subsequent resale. However, if the posters are consigned, or are otherwise lent to the theater on a temporary basis, to be returned or destroyed when done, the first sale doctrine does not apply.

That's why, for the most part, every poster everyone here owns is, um, in violation of copyright and/or trademark laws.

I think I've got the better of the argument here, Mr. Lawyer.  All these arguments were hashed out in the Disney/20th Century Fox v. MovieGoods lawsuit.  MovieGoods argued extensively that the "first sale" doctrine only requires a "transfer" (not sale) into commerce and that Disney/20th Century Fox "transferred" its posters to movie theaters and poster distributors for the promotion of its movies.  

I've included the essential pleadings here:

http://www.posternirvana.com/0DNE/MovieGoods/

Most of the litigation concerned 11x17 flyers, for which there is a stronger "first sale" argument that Disney intended such posters to be distributed to the public.

The parties settled before the issue was decided.  At the end of the day, both Disney and 20th Century Fox signed a consent decree expressly allowing MovieGoods to continue to sell original posters per the "First Sale" doctrine, effectively agreeing with MovieGoods' arguments.  



The settlement itself was very broad and went beyond 11x17 flyers.  It expressly banned the reproduction of Disney's intellectual properties, including the Aladdin one sheets:



And MovieGoods continues to sell original Disney movie posters, including Aladdin, almost certainly through the "First Sale" exception specified in the consent order.  Notably, MovieGoods does NOT sell repros of these posters.






The consent decree begs the question of what is protected by the first sale doctrine.  Nowhere does it state that moviegoods' sale of posters is protected by the first sale doctrine.  Instead, the decree enjoins moviegoods from selling anything that is violative, excepting what is covered by the first sale doctrine.

There simply was no resolution of this issue in that case, because it never went to trial.  It may be that they dropped the case for that very reason - to avoid having an adverse decision entered against it (Disney).

While moviegoods argued that only a transfer is required, to my knowledge there is no authority that supports that position.  The first sale doctrine has always covered just that -- the first sale and thereafter.  Otherwise, it would be the "first transfer doctrine" or some such.

But, it's an interesting argument to be sure.  Perhaps one day it will be settled.


What about the free posters given away at the theater.  This is likely a policy and accepted by the distributors.  If the movie theater gives posters away and then they are sold, does that solve the first sale doctrine issue...  How would the distributors be able to allow "give aways" and then claim that they had only transferred ownership. They could not prove that the poster given away is the one that was transferred.  I know many theaters give posters to employees as incentives.  

I also have noticed that many of the Disney posters have serial numbers; perhaps as a way to police or track them.  So serial number xxx through xxx went to Florida at joe blow theater and now it was sold so that theater is in violation unless it was known that they were given away.  Also if the poster were not to be sold and thrown out, how do you bring penalty on anyone selling it.  "I picked it out of the bin." Does a person not have the right to sell trash?

I think it can only apply when posters are specifically recalled (have to be returned not just destroyed) and can be tracked through serial numbers.  Who is to say that the poster is real or not? Disney can only prove this through the serial number system on their posters and is probably why they had the gumption to bring legal action.

Holiday.

posters are not exactly distributed directly by the studios (with small exception), but are generally distributed by third parties who warehouse and ship by contract to the companies doing distribution (Disney for instance has a subsidiary that does distribution, then they in turn contract a warehouse & shipper to do the heavy lifting). When these posters are given away by the distributors, the distributors & all upstream companies involved are essentially "abandoning" the individual posters, largely because it's too expensive to retrieve them.

I asked the mods to move all the "first sale" posts to a new thread.

Like I said a few days ago, the "downstream" collectors like us clearly "own" our posters.  I doubt there is a single case of a movie studio contesting ownership of a poster obtained by an individual collector from any source - dealer, other collector, theater employee, Ebay seller, etc.  You don't see Universal claiming to own that Dracula poster that Heritage sold, do you?

« Last Edit: April 29, 2012, 09:22:25 AM by Dread_Pirate_Mel »

Offline ddilts399

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Re: First Sale Doctrine - Who Really "Owns" Movie Posters?
« Reply #2 on: April 29, 2012, 09:42:59 AM »
Fox never replied, I am calling ebay to have my Vero's removed.

Dread_Pirate_Mel

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Re: First Sale Doctrine - Who Really "Owns" Movie Posters?
« Reply #3 on: April 29, 2012, 09:50:51 AM »
Fox never replied, I am calling ebay to have my Vero's removed.

The guy (Gerry B) who was banned is in Ireland and selling on UK Ebay.  

How about sending Fox a link to Tloce's fake Black Swan sales?

http://www.ebay.com/itm/BLACK-SWAN-ADV-A-27X40-MOVIE-POSTER-NATALIE-PORTMAN-/370603255465

Or send me the Fox email address to report sales and I'll send them the links.
« Last Edit: April 29, 2012, 09:52:42 AM by Dread_Pirate_Mel »

Offline ddilts399

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Re: First Sale Doctrine - Who Really "Owns" Movie Posters?
« Reply #4 on: April 29, 2012, 09:54:36 AM »
That is completely ridiculous cause international copyright laws and US laws are not even the same.

Offline jayn_j

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Re: First Sale Doctrine - Who Really "Owns" Movie Posters?
« Reply #5 on: April 29, 2012, 01:44:25 PM »
A bit of a summary to see if I am understanding it correctly.

1. Pre-NSS posters are likely in the public domain as the designs were never protected.
2. NSS posters are likely OK because of the warehouse sales to collectors, thus the first sale docterine applies
3. Post-NSS material is questionable.  The theaters never signed agreements with theater owners on disposition, but they did copyright the images.

The NSS material was clearly marked that it must be returned, and theaters had signed agreements. In my mind, it becomes a lawyer battle as to the legality of giving away or selling the post NSS material after its initial use was completed.  The interesting case might be the "recalled" posters.  Supposedly the studio sent letters out that the material be returned or destroyed.  However, nobody to my knowledge has ever produced such a letter, just letters saying "use this new poster instead"

If the studio can retain ownership of a poster, I am reminded of these cases where a muscle car, stolen 40 years ago turns up and is returned to the original owner.  The car may have been sold a dozen times in between and fully restored, but it is all considered tainted fruit and the last buyer essentially gets screwed out of both the car and the money.

In my mind it comes down to whether the studio has claims on an item where they didn't provide specific disposition instructions.  It would be a different case if a dealer were sellng off a roll, since the studio could show that he material was never used for its intended purpose, and thus was stolen.
« Last Edit: April 29, 2012, 01:45:34 PM by jayn_j »
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Offline erik1925

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Re: First Sale Doctrine - Who Really "Owns" Movie Posters?
« Reply #6 on: April 29, 2012, 06:23:48 PM »
Thanks for the summary, Jay.

Clear, concise and to the point.

 sm1


-Jeff

Dread_Pirate_Mel

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Re: First Sale Doctrine - Who Really "Owns" Movie Posters?
« Reply #7 on: April 29, 2012, 06:49:01 PM »
The interesting case might be the "recalled" posters.  Supposedly the studio sent letters out that the material be returned or destroyed.  

I agree the studios would have a strong case that "first sale" cannot apply to "recalled" posters but Miramax has never tried to stop the sale of recalled "Lucky Strike" Pulp Fiction posters (even though they routinely auction for $1000+), Disney has never claimed to own the Madonna "Dick Tracy" poster, etc., so it's not likely to be resolved.

As a practical matter overall the studios have done little to nothing to stop the "downstream" sale of movie posters, so it's really an issue for first sellers like Gerry and Dale of posters from newly-released movies.

Online Harry Caul

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Re: First Sale Doctrine - Who Really "Owns" Movie Posters?
« Reply #8 on: April 29, 2012, 09:26:16 PM »
I agree the studios would have a strong case that "first sale" cannot apply to "recalled" posters but Miramax has never tried to stop the sale of recalled "Lucky Strike" Pulp Fiction posters (even though they routinely auction for $1000+), Disney has never claimed to own the Madonna "Dick Tracy" poster, etc., so it's not likely to be resolved.

And like the NSS, Miramax sold their warehouse stock to Rich... no?

Offline brude

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Re: First Sale Doctrine - Who Really "Owns" Movie Posters?
« Reply #9 on: April 30, 2012, 12:49:15 PM »
I suggest that you miscreants send all of these unlawfully acquired movie posters to me so that I can sort it all out and return them to their proper owners (studios).
I have opened up a distribution facility for this express purpose.
If not, I will have to report you all to the International Movie Poster Reclamation Agency (IMPRA).
They make IRS collection agents look like pansies.

Offline jayn_j

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Re: First Sale Doctrine - Who Really "Owns" Movie Posters?
« Reply #10 on: April 30, 2012, 02:07:09 PM »
Hey, I'm safe as I use any post NSS material as a winter alternative heat source :)
-Jay-

Offline ddilts399

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Re: First Sale Doctrine - Who Really "Owns" Movie Posters?
« Reply #11 on: May 31, 2012, 02:52:42 PM »
Just got this link from a lawyer, now this is on the music side of the house, but same situation. The IP owner sends promotional material out, without any agreement of no sales to happen. Lawyers in the house, if you have time for light reading, what are you thoughts.

http://www.ca9.uscourts.gov/datastore/opinions/2011/01/04/08-55998.pdf


Offline jayn_j

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Re: First Sale Doctrine - Who Really "Owns" Movie Posters?
« Reply #12 on: May 31, 2012, 04:41:30 PM »
Just got this link from a lawyer, now this is on the music side of the house, but same situation. The IP owner sends promotional material out, without any agreement of no sales to happen. Lawyers in the house, if you have time for light reading, what are you thoughts.

http://www.ca9.uscourts.gov/datastore/opinions/2011/01/04/08-55998.pdf

I'm not a lawyer, but it looks like pretty good news and a precedent that can be used for posters.  The appeals court basically stated that unsolicited material sent for promotional use constituted a change in ownership and thus the first sale doctorine applied.  In order to protect the material, the content provider would either need a signed agreement with the person receiving the material or would need to control inventory by individually numbering each copy and requiring either return or destruction.

The court decision would seem to indicate that we can legally own our posters.
-Jay-

Charlie

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Re: First Sale Doctrine - Who Really "Owns" Movie Posters?
« Reply #13 on: May 31, 2012, 04:55:17 PM »
I'm not a lawyer, but it looks like pretty good news and a precedent that can be used for posters.  The appeals court basically stated that unsolicited material sent for promotional use constituted a change in ownership and thus the first sale doctorine applied.  In order to protect the material, the content provider would either need a signed agreement with the person receiving the material or would need to control inventory by individually numbering each copy and requiring either return or destruction.

The court decision would seem to indicate that we can legally own our posters.

What about serialed Disney posters...

Dread_Pirate_Mel

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Re: First Sale Doctrine - Who Really "Owns" Movie Posters?
« Reply #14 on: May 31, 2012, 08:35:46 PM »
Yep, sending "unordered" promotional CDs seems similar to sending promotional posters.  

The essential issue in the case is whether the recipients of the CDs are "licensees." As a matter of law, a license is not a transfer of ownership (or “sale”) of the copy. 

The CDs included a statement that "this CD is the property of the record company and is licensed to the intended recipient for personal use only. Acceptance of this CD shall constitute an agreement to comply with the terms of the license. Resale or transfer of possession is not allowed and may be punishable under federal and state laws."

The court held that the record companies could not unilaterally create a license agreement merely by including that language on the CD.

The NSS paragraph on older movie posters is very similar and also attempts to create a "license" that - by itself - probably is insufficient to create a valid license under the holding of this recent case.  

However, I wouldn't be surprised if studios have more specific license agreements with theaters (and theater chains) that cover promotional posters and those agreements could be valid, which could defeat any "first sale" defense by subsequent purchasers.
« Last Edit: May 31, 2012, 08:49:36 PM by Dread_Pirate_Mel »

Dread_Pirate_Mel

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Re: First Sale Doctrine - Who Really "Owns" Movie Posters?
« Reply #15 on: June 09, 2012, 09:59:43 AM »
I became a "member" of LAMP, which offers the very detailed "Legality of Movie Posters" book for reading online.

It's copyrighted original research, so I won't copy any of it here or go into much detail.  In summary it lays out a pretty solid case that the "First Sale" covers all pre-1985 posters because (1) the studios routinely sold movie posters to theaters and theater exchanges and (2) the liquidation sales from the closure of the NSS poster exchanges in the 1980s both in Canada and US released hundreds of thousands of "first sale" posters into the hobby, so it's impossible for the studios to claim ownership of any particular pre-1985 poster.

I've sent an email to Ed about the applicability of "First Sale" to modern posters, since they are not sold to theaters or the public.
« Last Edit: June 09, 2012, 10:01:26 AM by Dread_Pirate_Mel »

Offline jayn_j

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Re: First Sale Doctrine - Who Really "Owns" Movie Posters?
« Reply #16 on: March 19, 2013, 12:29:27 PM »
Supreme court ruling today comes down strongly in favor of first sale doctrine, and does much to legitimize collecting
http://movies.yahoo.com/news/supreme-court-rules-against-entertainment-industry-book-publishing-050000729.html
« Last Edit: March 19, 2013, 12:31:57 PM by jayn_j »
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Offline ddilts399

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Re: First Sale Doctrine - Who Really "Owns" Movie Posters?
« Reply #17 on: March 19, 2013, 04:29:46 PM »
Supreme court ruling today comes down strongly in favor of first sale doctrine, and does much to legitimize collecting
http://movies.yahoo.com/news/supreme-court-rules-against-entertainment-industry-book-publishing-050000729.html

Excellent, let me send that to my friends at foxip :)


Dread_Pirate_Mel

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Re: First Sale Doctrine - Who Really "Owns" Movie Posters?
« Reply #18 on: March 19, 2013, 07:51:27 PM »
I can't see how that case generally "legitimizes collecting" or is related to movie posters.  It's a very "narrow" case holding that if a US copyright owner sells a copyrighted item (for example, a textbook) in a foreign country, that foreign sale constitutes a "first sale" for purposes of US law.  So the buyer can export the item to the US and resell it in the US without permission of the copyright owner.

Remember that "first sale" is part of the US Code, so "first sale" is a very well-established exception to copyright.  As far as movie posters, "first sale" is really only an unsettled and important issue for current-release dealers like Dale.  General collectors need not worry about it since the studios have never tried to block a "downstream" sale or auction of a movie poster, probably because (1) it's not worth it and (2) for legal reasons explained in the prior posts (e.g. abandonment, NSS liquidation sale, etc).
« Last Edit: March 19, 2013, 08:25:50 PM by Dread_Pirate_Mel »

Dread_Pirate_Mel

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Re: First Sale Doctrine - Who Really "Owns" Movie Posters?
« Reply #19 on: April 04, 2013, 07:57:24 AM »
Off topic but interesting.  A court just held that "first sale" does not apply to resales of digital music files, even if the original buyer bought the music from iTunes, deleted it from his/her computer, and resold it through an entity like Redigi.

Article here:

http://www.slate.com/articles/technology/future_tense/2013/04/redigi_lawsuit_judge_rules_that_reselling_used_digital_music_is_illegal.html

Decision here:

http://ia600800.us.archive.org/30/items/gov.uscourts.nysd.390216/gov.uscourts.nysd.390216.109.0.pdf

Redigi lost on several grounds but the most interesting reason is that "first sale" only applies to physical records that degrade over time whereas digital copies don't degrade:

“Physical copies of works degrade with time and use, making used copies less desirable than new ones. Digital information does not degrade, and can be reproduced perfectly on a recipient’s computer. The ‘used’ copy is just as desirable as (in fact, is indistinguishable from) a new copy of the same work. Time, space, effort and cost no longer act as barriers to the movement of copies, since digital copies can be transmitted nearly instantaneously anywhere in the world with minimal effort and negligible cost. The need to transport physical copies of works, which acts as a natural brake on the effect of resales on the copyright owner’s market, no longer exists in the realm of digital transmissions.”


The principles of this decision would appear to apply equally to digital images sold on the Internet by a copyright owner.  There are no such sales I'm aware of in this hobby, but I assume there are sites selling high-quality copyrighted photographs (nature photos, etc.).

As pointed out by the court, Congress needs to update the copyright laws to address digital copies.
« Last Edit: April 04, 2013, 07:58:55 AM by Dread_Pirate_Mel »

Offline ddilts399

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Re: First Sale Doctrine - Who Really "Owns" Movie Posters?
« Reply #20 on: April 04, 2013, 10:28:30 AM »
I must be missing something. The first sale doctrine has nothing to do with the value of the item degrading with time as written. What a crock of shit. Sounds like they were just winging it on this one.

Dread_Pirate_Mel

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Re: First Sale Doctrine - Who Really "Owns" Movie Posters?
« Reply #21 on: April 04, 2013, 01:29:12 PM »
I must be missing something. The first sale doctrine has nothing to do with the value of the item degrading with time as written. What a crock of shit. Sounds like they were just winging it on this one.

The courts are punting the digital rights issue to Congress, which, of course, will do nothing.....