Want a way around this? Just charge a restocking fee, and you’re golden.

damonlawner@earthlink.net

if anyone can come up with a way around this, I will pay a very nice fee for your genius. please contact me by e-mail.

In their terms they say:
Credit Card Billing – Lost/Unreturned/Damaged CDs
You agree to allow us to charge your credit card for the listed purchase price of a CD in the following situations:

A careful reading of their FAQ suggests that Ongo Bongo’s position is that they are selling used CDs, with a very liberal return policy. It also sounds like anyone can buy a used CD from their website, but only members get the benefit of unlimited returns.

Record and software rentals have been exceptions to the First Sale Doctrine (FSD)since 1984 and 1990 respectively, but I think you have it right when you say FSD is the exception.

Kamarck argued that the FSD’s time was coming back in an article way back in 1997. His theory was based on (1) the additions of soundtracks to DVDs and (2) the probable future prevalance of copying technologies. He stated, “Under Gatt, the United States must abolish the First Sale Doctrine for ‘cinematic works’ if there is evidence of widespread consumer copying*.” (above article).

Under that theory, ironically, suppression of DeCSS and DVDXCopy would have saved FSD (much to RIAA/MPAA chagrin).

Personally, I think it’s a matter of consumer knowledge/custom. Now that consumers are used to the idea of NetFlix and Blockbuster Game rentals, OngoBongo might have a fighting chance if they can get past the inevitably forthcoming injunction (OR unless their backers get wise to the Record Rental Amend. of 1984 and pull funding first).

*on the GATT theory: TRIPS Article 11 allows studios to stop Blockbuster to stop renting a movie if suffiecient copying by consumers is demonstrated. This will never happen. Why? studios sell more DVD’s when a movie is exposed via rental. This “should” demonstrate that renting is good for business. However, I guess MPAA would argue this is only true because their suppression of duplication technologies is working, and duplication methods for CDs are already widespread.