The Patry Copyright blog has posted details of
an interesting copyright case: United States v. Chalupnik. It doesn't, strictly speaking, have anything to do with hoaxes, except that it raises the question of whether there actually was a crime committed, or whether it's an example of a big corporation trying to invent a crime. Here are the facts, as summarized by William Patry:
defendant was an employee for the U.S. Postal Service. BMG Columbia House is a mail order operation selling CDs and DVDs by mail. Many of these discs are undeliverable. Rather than pay the postage to have them returned to it, BMG Columbia House instructed the Postal Service to throw them away. The Postal Service did throw them away. Defendant then retrieved them from the trash and sold them to area stores, netting $78,818. A surveillance camera showed defendant retrieving the items and he was arrested; he was originally charged with felony mail theft, but then pleaded guilty to misdemeanor copyright infringement. The trial court sentenced defendant to two years probation and ordered him to pay $78,818 to BMG in restitution. Chalupnik appealed.
So the guy took the CDs
out of the trash and resold them, prompting BMG to complain that he had caused them lost sales. Does this mean that if I threw away a box full of my books, I could sue anyone who found them in the trash and sold them? That doesn't seem to make sense. After all, I threw them away, presumably forfeiting my ownership of them.
The court overturned the defendant's sentence on appeal -- but it sounds as if he still might face some other form of sentencing.
The complicating factor here is that he was a post office employee, and thus was obligated to honor the post office's promise to BMG that it would actually throw away the material.
Comments
I imagine that part of the issue, at least, is the contested interpretation of the first-sale doctrine: you can resell anything that has once been bought and paid for, but can you legally sell on something that was not? (Apparently, precedent says you can - but as in this case it's still disputed.) I'm not sure how these things work, but many countries have laws that require at least nominal payment in transactions (hence those alpine-village-for-a-penny stories and so on).
Can't be bothered to do all the research, though. No matter how much I want to be distracted from my work:)
Perhaps his actions were considered to be some kind of "insider dumpster diving". Anyone else would have gotten away with it.
As a government employee, I am (by law) un-allowed to make profit on anything, other than my paycheck. I am not allowed to accept gifts from vendors (we often get training courses with the big catch "win an ipod", etc). I can't take any material, good bad or otherwise, and sell it on e-bay. If the material is slated for destruction, it must be destroyed. There may be other agencies who operate otherwise, like letting you take home the old (to-be-trashed) PCs, but you still can't sell them for profit.
Prosecutions have happened, in the past, so I know that our local government agencies are willing to enforce this.
If the post office told its employees that they were allowed to take anything that was thrown out, then BMG wouldn't have a case against the individual (against the USPS, maybe.)
A question semi-related to this: If a case like this goes on appeal, is the money held by the courts, or is the defendant allowed to keep it? Just curious on the fine points of the law.
1. Were these items actually placed in the trash? Taking something that is "just going to be thrown away" without actually throwing it away does not comply with the property owner's (BMG) wishes.
2. Is the trash in a publicly accessible area? If the trash is within a USPS secured area, then it is still under the control of the USPS until it is trucked off-site.
3. Was this person off-clock and out of uniform when he 'dumpster dove'? As an employee, he has the obligation of fulfilling the disposal wishes of the property owner and cannot alter it.
Also, as Bill says above, as a federal employee, he would be prohibited from profiting while on the job or with insider information from the job.
It's like when someone gives you an old car...and then you turn the old car into a hot rod & the old owner says..."Oh, I want it back, I didn't realize it could be made INTO something."
Personally I hate to see wastefulness, and think it's great he was enterprising and turned trash into treasure. It would be a shame if that is punished rather than rewarded.
The reason so many musicians and writers struggle for years trying to make it in a tough and competitive industry is the possibility of making big money. If people persist in trying to get it for free, then they might decide to do something else for a living. Think about it. If your employer stopped paying you, how long would you keep working for them?
For Sale: Banana
peel, chicken bones, half a shoe,
ton of DVDs.
Second, If you throw it out...you don't want it anymore and last but NOT least, If the amount the guy made off of selling the CD's hadn't been quit so high, nobody would have cared...the company just saw a good oppetunity to make extra money!
Is it legal to sell those free USPS boxes they ship to you when you order them? The reason I ask is because the USPS sent me 20 boxes of the same kind, and I only wanted 10, i have no where to put them. Is it legal to sell them on eBAY or something?
While it might not be illegal it is certainly immoral to sell something that you got for free and that the purchaser could also get for free. Anyone would have to be a fool to pay you for free boxes and you would then be the type of person who would take advantage of a fool.