More DMCA lies

A used-booksellers' listserv to which I subscribe carried a link to this discussion on Ed Foster's Gripelog yesterday. It seems that Warner Brothers is sending out the usual DMCA shakedown... er, "takedown" letters demanding that Ebay suppress auctions of secondhand Madonna/Missy Elliot promotional CD's which were originally distributed with Gap jeans. Ebay helpfully explains that "PROMO ONLY means just that: for PROMOTIONAL USE ONLY, NOT TO BE SOLD. We have to respect the requests of the artists, if they want us to remove those items."

Hmm. That's not what the U.S. copyright law says:

Title 17, Chapter 1, § 109. Limitations on exclusive rights: Effect of transfer of particular copy or phonorecord. (a) Notwithstanding the provisions of section 106(3), the owner of a particular copy or phonorecord lawfully made under this title, or any person authorized by such owner, is entitled, without the authority of the copyright owner, to sell or otherwise dispose of the possession of that copy or phonorecord. (Emphasis added.)

It looks like Warner Brothers is using the DMCA's "takedown clause" (and the cowardice of Ebay management) to unilaterally abolish the established doctrine of "First Sale" as described and explicitly protected in US law. If their cease-and-desist letter to Ebay, like most such letters, states, "under penalty of perjury" that resale of these CDs violates copyright law, then they are deliberately and knowingly lying under penalty of perjury.

So. Which Attorney General or Federal Prosecutor is going to be the first to haul WB's executives and lawyers into court and charge them with perjury?

I'm waiting....

Any time, guys....