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.

Comments

Article text (already slow to subscribers)

[mao che minh]

Does the Right of First Sale Still Exist?

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.

Re:Article text (already slow to subscribers)

[rednaxela]

This is likely to cause a rather serious problem for our fair hero. Excerpted from http://www.info.apple.com/usen/musicstore/policies .html CONTENT USAGE RULES Your use of the Products is conditioned upon your prior acceptance of the terms of this Agreement. You shall be authorized to use the Product only for personal, non-commercial use. You shall be authorized to use the Product on three Apple authorized computers. You shall be entitled to burn and export Products solely for personal, non-commercial use. Any burning or exporting capabilities are solely an accommodation to you and shall not constitute a grant or waiver (or other limitation or implication) of any rights of the copyright owners of any content, sound recording, underlying musical composition or artwork embodied in any Product. You agree that you will not attempt to, or encourage or assist any other person to, circumvent or modify any software required for use of the Service or any of the Usage Rules. The delivery of a Product does not transfer to you any commercial or promotional use rights in the Product. Refer to Terms of Sale for more detailed information on Usage Rules.

Re:Apple usage policy

[Anonymous Coward]

"2. I've read the iTunes agreements and found nothing denying transferability."

Re:Sounds reasonable

[tgd]

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.

Re:Apple usage policy

[Casca]

Jesus, read past the damn headline... He already said there isn't anything in the agreement with respect to transfer.

Re:TOS compatible

[period3]

But donating $20 to the EFF doesn't seem moronic. RTFA.

Re:Sounds reasonable

[Brahmastra]

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

eBay policy

[n3xup]

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.

Copy of the iTunes User Agreement

[Sophrosyne]

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.

Re:Copy of the iTunes User Agreement

[Paul Slocum]

It's right there in the license: "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." -Paul

eBay can cancel this auction

[Powercntrl]

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.

Re:Possible?

[fubar1971]

...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.

$9,700 now, "this is a test, this is only a test"

[Dave21212]

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.

$9,600??

[anarcat]

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! :)

Re:What is legally happening here?

[Graff]

the relevant question is not what he considers to be copying, but what the law does.

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:

106. Exclusive rights in copyrighted works

Subject to sections 107 through 122, the owner of copyright under this title has the exclusive rights to do and to authorize any of the following:

(1) to reproduce the copyrighted work in copies or phonorecords;
...

(3) to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending;

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"

Re:What is legally happening here?

[ichimunki]

The courts have ruled that mere possession of the physical medium does not imply license to use, as does the possession of a book or musical recording, because to make use of the digital data it must be copied into memory first and that copying is covered under copyright law as restricted. Thus you need a license to copy that which you have already purchased for use.

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:

117. Limitations on exclusive rights: Computer programs

(a) Making of Additional Copy or Adaptation by Owner of Copy. -- Notwithstanding the provisions of section 106, it is not an infringement for the owner of a copy of a computer program to make or authorize the making of another copy or adaptation of that computer program provided:

(1) that such a new copy or adaptation is created as an essential step in the utilization of the computer program in conjunction with a machine and that it is used in no other manner, or

(2) that such new copy or adaptation is for archival purposes only and that all archival copies are destroyed in the event that continued possession of the computer program should cease to be rightful.

Tell Apple what we think!

[Kulaid982]

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.

Media catching stories from slashdot.

[krymsin01]

Several news sites have written articles on this, after the slashdot post. One even cites slashdot as the source.

Links:
http://www.neowin.net/comments.php?id=13369&catego ry=main
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.

Re:Copyright Law Forbids This

[EelBait]

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.