Slashdot Mirror
Testing The Right To Resell Downloaded Music
David Gerard writes "A man has bought a song from Apple iTunes and has put it up for sale on eBay. "I only spent $0.99 on it but I bought the song just as legally as I would a CD, so I should be able to sell it used just as legally, right?" Does the Right of First Sale still exist?" The seller says he's seeking attention, but not to himself. Rather, he calls this "an experiment in property rights in the digital age," and promises not to keep a copy once the sale is done.
I just posted an eBay auction for a song I bought from the iTunes music store. It should be interesting to see how this works out. I only spent $0.99 on it but I bought the song just as legally as I would a CD, so I should be able to sell it used just as legally right?
[Update 09-03-2003 10:08 AM] Right now I've come up with a couple ways that the transfer of ownership could take place. One is to call up Apple and ask them to do it for me, which would be an interesting call. The other way would be to give my account to the winning bidder, which doesn't seem like a bid deal considering that I've only purchased one song. Still, I'd have to make sure that my credit card info was completely disassociated with the account. Or I could just create a new account and repurchase the song on that account.
[Update 09-03-2003 11:25 AM] I'd like to respond to a few points made by people: 1. It's true that I'm seeking attention, but not for me personally. This is an experiment in property rights in the digital age, something that's gotten surprisingly little attention. 2. I've read the iTunes agreements and found nothing denying transferability. This isn't any more a commercial venture than selling CDs at the local music store, I'm not incorporated or even DBA. Furthermore, in case anyone thinks this is a cheap way to make a buck I will be donating all proceeds to the EFF. 3. When the song is successfully transferred, I will not be keeping a copy of the song. If I don't own it I shouldn't have a copy.
[Update 09-03-2003 11:25 AM] A very excellent comment below by Piggly Wiggly asks if I will convert the format for delivery. My answer right now is "no" because I don't want to cloud the issue of the sale by changing the format. Also, I'd like to thank all the people posting supportive comments who realize that this is about more than a $0.99 song being over-valued on eBay.
"2. I've read the iTunes agreements and found nothing denying transferability."
Um, they've complained since day one about used CD stores. Numerous attempts were made to shut them down, and to make them illegal. Sure, it was ten plus years ago when most of /. was riding bigwheels in their parents driveways, but they most certainly DID do precisely that.
Jesus, read past the damn headline... He already said there isn't anything in the agreement with respect to transfer.
Casca
But donating $20 to the EFF doesn't seem moronic. RTFA.
Kinda like the people who buy a cd, copy it, then sell it to a used music store?
What?
iTunes files can be played on up to three authorized Macintosh computers, according to this. I figure if the seller has only one computer, he could conceivably authorize the buyer's Mac to read the file, too.
Someone with iTunes, let me know if that's not how it works. Do you have to pre-authorize the computers with iTMS before you even download it for that to work?
Also, as you can see in the article, if they have older versions of the iTunes software, he could stream it to the buyer, as well.
Actually here's an older slashdot story about record companies demanding royalties for used CD sales. They have always been SOBs and always will be: http://slashdot.org/articles/02/06/14/2111220.shtm l?tid=141
iTunes currently only works for United States residents.
Here is what eBay says about such sales:
Downloadable Media Policy
eBay prohibits the listing of items or products to be delivered electronically through the Internet.
Examples
A copy of a software program which the successful high bidder can download from your Web site
Music or video files that you will deliver through a peer to peer file-sharing community or network
A copy of a downloadable eBook
A secret URL address where the high bidder can download "freeware" or "shareware" software programs
Doesn't seem like this is okay with eBay.
The only thing close from Terms of Service:
You agree not to modify, rent, lease, loan, sell, distribute, or create derivative works based on the Service, in any manner, and you shall not exploit the Service in any unauthorized way whatsoever, including but not limited to, by trespass or burdening network capacity.
But that's only derivatives. The only mention close to this topic in the Terms of Sale is this:
All sales on the iTunes Music Store are governed by California law, without giving effect to its conflict of law provisions.
So there isn't anything specific about reselling it. However, if sold in the DRM version there's no guarantee the purchaser can unlock it, unless the seller shares his buying info and authorizes the other computer. Apple can probably enforce that - they are no obligation to authorize anyone other than the original purchaser. If he transfers it to CD or mp3 to sell/ship, then he probably would place himself in danger of prosecution as an unauthorized distributor of copyrighted work. {e.g. I probably can't take a CD, make a tape, and then sell that tape even if I then destroy the CD. - the physical equivalent of what he might try if the mp4 can't be transfered.)
R: That voice. Where have I heard that voice before? B: In about 365 other episodes. But I don't know who it is either.
I copied the iTunes User Agreement.
It's available in PDF and TXT for your enjoyment.
I haven't read it over yet... but I bet this guy is just asking for trouble.
Woops sorry forgot to include this:
iTunes Music Store Terms of Service.
Terms of Sale.
In order to sell IP (software/music/etc.) on eBay burned to CD-R or in a downloadable format, you MUST be the legal copyright owner of said intellectual property and state it in your auction. I ran into this problem before selling my own software without the notice and eBay pulled my auction.
Check eBay's policies... They are well within their rights to end this auction. eBay generally tries to stay away from legal gray areas. Things that are actually legal to sell, for example, unprogrammed DSS access cards and Xbox mod chips with the Cromwell Clean Linux BIOS are not allowed by eBay to be sold. eBay is just trying to cover their own ass.
---
DRM is like antifreeze, to the MPAA/RIAA it's sweet, to the consumers it's poison.
Actually, its pretty easy technically, as long as Apple supports it through FreePlay. You tell the music store you've sold the file to this other guy. It authorizes him to download and play it, and maybe even handles the money transfer. Then it prevents you from downloading it or registering any new copies of the file. You've still got the problem of the seller keeping already-registered copy, or having burned one off to a CD, but you've got exactly the same problem with a used CD. (And CD copying is no less trivial in this day and age)
...Of course, legally if this is possible (which I believe it would be), he would be transferring ownership of the rights to that song making the iTunes copy he still has in his posession illegal...
I don't believe you are correct. His rights are assigned and associated to the iTunes file, not an ill-gotten MP3 he downloaded. Even if you buy a CD, according to copyright laws you are allowed to make one backup copy for archival purposes. That's why the RIAA has a leg to stand on in court. Even if you own the CD's, legal you can not download the MP3 from someone else. You rights are associated to your media, not someone elses media. Now if you rip the songs off of your media, and do not share them, then you are ok. As soon as you share them, or download someone elses, then you have violated copyright law, because the content you are using is not associated to your purchased media.
So if you sell the iTunes file, and then give the person the MP3, not only did he reneg on the iTunes sale (because the rights are associated to the iTunes file, not the MP3 you downloaded), but you just sold a pirated MP3.
Simply put, this is one of the most idiotic things I have ever heard. I predict that Apple totally ignores this - and any/all other sales like it until a secondary market develops. Even then, I see Apple simply taking the position publicly that once it initially makes the sale, it has no further involvement with the process. I also predict an analogy to used record shops. By the way and for the record - I use Apple products in my home and work, but am not affiliated with it in any way.
Laws affecting technology will always be bad until enough techies become lawyers.
Plenty of interesting posts out there on the topic (DRM, Apple, eBay bashing excluded)..
But the point I think many are missing is that this is explicitly an Experiment to see where it goes. I have to admit, selling an iTune on eBay sounds like some sort of smart-assed reply on
and this guy is actually doing it !
(of course, all proceeds if any going to EFF). Kudos ! and kudos to timothy for posting it.
"Whoever would overthrow the liberty of a nation must begin by subduing the freeness of speech."--Benjamin Franklin
Who would have tought Devin Vasquez was so popular!?
:)
Now either someone mistyped a bid, or someone is philantropic here.
For the record, the bid is now at $9,700 and rising. It was at $360 not 10 minutes ago and $9,600 when I started this comment.
Go bidders!
Semantics is the gravity of abstraction
A very good observation. I believe it is illegal (ie, against copyright law) to reproduce a work through any type of copying. This would be similar to photocopying a book, burning the original, and selling the copy to someone. It's the very act of copying the work that is illegal because you were not given the right to reproduce the work. Here's the relevant section of the code:
So, since only the original author has the right to reproduce the work it would be illegal to reproduce it. If the iTunes music store specifically gave you the right to reproduce the work then you could make a million copies. However, you would then run into section 3 of the code quoted above, which says that only the owner of the copyright can transfer ownership of a copy of the work.
A very thorough and much more involved look at the First Sale Doctrine can be found at the Duke Law & Technology Review article: "THE FIRST SALE DOCTRINE AND DIGITAL PHONORECORDS"
Sapere aude!
Just to be specific, slavery is not illegal in these United States, just abhorrent
emphasis mine
Amendment XIII
Section 1. Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction
If thou see a fair woman pay court to her, for thus thou wilt obtain love
Unfortunately, the auction will be taken down soon...
Now that the song is $9,700, I sure hope that the winning bidder actually plans to pay.
As it stands, the eBay fees are going to be $158.92, and it would stand to reason that the song will go for a lot more in the next 6 days. eBay's policy is that the seller pays them the fee whether or not the winning bidder pays (so if this song went for $100,000, georgeh734 would be screwed out of over $1,500 if the winning bidder didn't pay).
And the high bidder has a feedback rating of 0 right now; if I was the seller I would be sweating a little right now.
(And if he does pay--through PayPal--then georgeh734 will have to pay eBay even *more* money, but don't get me started on that issue)
Yeah, but I don't trust this $9,700 bidder. Its hard to imagine that someone who joined EBay on April Fool's day 2003 and has no history is reliable. He's probably assuming someone else will bid higher.
In fact, the last real bidder was macjedi. I wonder what his bid was.
This guy can contend his interpretation of the License all he wants, but my interpretation of :
from Terms of Serviceis that he can't sell a work from the Service (iTMS). Not to mention that any transfer via email, upload, etc, entail making a copy as you send it. Finding prohibition of copying ain't too hard.
You know what?
Bull-hockey. The courts have ruled no such thing. In fact, the copyright law specifically allows for this sort of "copying" the data into memory in the case of computer software or other cases where such "copying" is a necessary part of using the copyrighted work.
RTFM:
I do not have a signature
You're correct about the Right of First Sale. It's enumerated in 17 USC 109:
However...you're incorrect here:
17USC117(a)(1) specifically exempts copies made as a necessary part of using it:
N. --
unless you own the copyright of the song (aka - you are the creator of said tune) or you have permission to resell/sell direct from said artist or music distribution company (whom no doubt owns the copyright).
.. hey, I bought this car. SO I DEMAND THAT YOU GIVE ME ALL THE MANUFACTURING PLANS AND RIGHTS to do whatever the fuck I want with your car, because I love it so much. If you said that to a car manufacturer, they'd laugh in your face and tell you to fuck off. It sucks, but that's the simple reality of the situation. In other words GET OFF YOUR HIGH HORSES, and stop trying to fuck with the music industry - or they'll(RIAA) continue to sue you and threaten you with legal action cos the rights you have, are bugger all.
is it really that difficult to understand?
Basically, if you're not the artist, or don't have direct permission from owner of said creative work - YOU - as a user, have BUGGER ALL Rights to that tune.
The only reason people are confused, is because music can be a very PERSONAL form of entertainment.
Thus, People get very personal and silly about the copy of the music/ that they "own".
All this MP3's malarky is like saying
It's called the "Doctrine of first Sale", and it has a Supreme Court decision from the early 1900s, and basically says the original seller has no say about what the buyer does with a legally acquired copy (aside from being able to prohibit copying it). Especially, they can't keep you from reselling it.
"Reality is just a convenient measure of complexity" -Alvy Ray Smith
At about 5:00, I called Apple, to get their opinion on this whole thing. They had no clue what's going on. What I did get from them was a number direct into their corporate headquarters (I had asked for PR or the legal dept.) This means we've got a prime opportunity to voice our opinions to Apple and hopefully sway them in a direction that will be favorable to all us /.ers.... Call them at 1(408) 996 1010 and simply wait for a rep or leave a message. Let's all urge Apple to support and embrace the resale of digital music. This could be a huge victory and give us ammuniton against the RIAA. Call Apple, tell them that they'd better not screw this up. Do the right thing, Apple.
Isn't it interesting how you come to recognize posters based solely on their sigs???
Several news sites have written articles on this, after the slashdot post. One even cites slashdot as the source.
o ry=main
Links:
http://www.neowin.net/comments.php?id=13369&categ
http://www.afterdawn.com/news/archive/4439.cfm
http://www.theinquirer.net/?article=11358
Won't be long now before ebay pulls this auction. No money for EFF.
stuff
3. Transfer. You may not rent, lease, lend or sublicense the Apple Software. You may, however,
make a one-time permanent transfer of all of your license rights to the Apple Software to another
party, provided that: (a) the transfer must include all of the Apple Software, including all its
component parts, original media, printed materials and this License; (b) you do not retain any
copies of the Apple Software, full or partial, including copies stored on a computer or other
storage device; and (c) the party receiving the Apple Software reads and agrees to accept the
terms and conditions of this License.
Looks to me like he CAN in fact do this.
Who the fuck gave this a +1 informative? Someone has apparently never heard of the right of first sale or even been to a used music store.
If I own a CD or a tape, I can sell it later. While I don't own the copyright to the music, that copy of the music is my property, and I have a legal right to sell it. This right has been upheld in US courts over and over again.
0 1 - just my two bits
No it doesn't. Do a google search for the term "Right of First Sale". The copyright law and Supreme Court decisions indicate that the copyright holder gives up all rights to control subsequent sales after the first sale. There are also special exemptions for Libraries, etc.
The copyright law prohibits someone from selling reproductions, but Right of First Sale dictates the disposition of the object afterwards.
The question here will be how Right of First Sale applies to a digital recording that was never originally distributed on any kind of media.
This decision might also affect the validity of other digital recording "licenses" like computer software, etc.
The "I bot it so I kan sell it!" argument does not always apply.
Q: Can I sell my ticket?
A: No, tickets are not transferable, FAA security regulations require that the person named on the ticket be the person who flies. FAA regulations also require that every passenger present proper identification prior to boarding.
Q: Can I sell my AAdvantage miles or certificates claimed with AAdvantage miles?
A: No. AAdvantage program rules provide that at no time may AAdvantage mileage credit, award certificates or award tickets be sold, purchased or bartered. Mileage credit, certificates or tickets are void if transferred for cash or other consideration.
Q: Can I sell vouchers and coupons?
A: No. Vouchers and coupons result from an agreement between American Airlines and the original ticket holder. The agreement between American Airlines and the original holder specifies that they are void if sold, purchased or bartered for cash or other consideration.