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.
My main question is how would the ownership of the file be transferred?
At the moment, the Apple Store lets you "authorize" music files. So for this person, after the file had been "sold", he would have to deauthorize the up to 3 other computers that had been allowed to play the song, give a copy of the file to the buyer, then provide them with his Apple iTunes Store username/password so they could authorize it on their machine.
As he mentions, he could call up Apple and ask them to switch his authorization of the song to another user.
Either way, it does raise an interesting question, and as someone who has been using the iTunes Music Store, I've never thought about it: Suppose that years from now, I want to sell all my downloaded music files to someone else. Is there a way to transfer the license? What if I left them in a will to my children later on - could Apple be required to ensure that they could use the files later?
Or he's about to run into a massive "legal agreement" which will negate his First Sale ability - we'll just have to see what happens, neh?
52 Weeks, 52 Religions with John Hummel
However, anybody stupid enough to pay $20 for an MP3 is a moron.
Xaotik Designs
Perhaps all he has is a non-transferable license to maintain a copy of the music for personal listening purposes, similar to how some hardware vendors (gouge) charge their customers an exorbitant license fee for software. Those software license fees counteract relatively cheap hardware appliances, a similar business model to gaming consoles. Remember, Microsoft, Sony etc lose money on the console hardware but make their profits on the sale of the games.
perl -e 'print $i=pack(c5, (41*2), sqrt(7056), (unpack(c,H)-2), oct(115), 10)'
When you agree to the TOS on the I-tunes, you are agreeing to any conditions they give you. If they wish to put in their TOS that in order for you to use their service you give up certain rights, then guess what, when you sign it, you voluntary give up those rights.
Xaotik Designs
Yes but thats alot more effort and you can only sell the used CD once.
I could be wrong, but is there something that will prevent the files from being sold over and over again by the same person with all profits going to himself instead of EFF?
In Soviet Russia, the television watches YOU!
This isn't about the song. People are now bidding for the privilege of direct involvement of setting a legal precedent against DRM. And to donate to the EFF. Check out the auction.
That's only true if those terms and conditions don't violate existing law. My landlord can't, for example, enforce a clause in the lease saying that part of my deposit is automatically forfeit for carpet cleaning when I move out, even if the carpet is spotless.
She can TRY if she wants, and the clause can be there, but it's an illegal clause and thus is unenforcable, and I can take her to court in this state and get my money back.
There are some rights one cannot sign away, no matter what the TOS might say. The question here really is whether right of first sale is one of them.
Even Jesus hates listening to Creed.
I know someone that was bidding on pontoon boats on ebay. They lost, and called the seller to see if they had anything else. As it turns out, the seller is actually a company that builds pontoon boats. They sell them for regular price at their store, but they find that on ebay they'll get $1000USD or two more.
Qualitas edurus commercium, nullus penitus net rimor, nullus deus beneficium
Sounds like some high-collection-rate loan outfits I've heard of. They don't bother with the signatures though...
Have you ever heard of the phrase "inalienable rights"? To allow people to give up their rights is just opening up the door for those with power to give folks an offer they can't refuse. Suppose all credit cards came with an indentured servitude clause?
Legal principles like first sale should take precedence over any contract made after the principle is upheld by a court. Since first sale was upheld a long time ago, that would include any contract dealing with digital media.
Every industry would love to get rid of the 2nd-hand market - it depresses prices. Gosh, if music fell under first sale you'd have cooperatives where everybody donates 10 songs to get access to the whole collection - as long as only one copy is checked out at a time it would be legal. Publishers would love to get rid of libraries as well - but that doesn't mean they're illegal.
As of 4:00PM Sept. 3, 2003, there are already well over 30 bids on the I-Tune, and bidding has exceeded $20. The original price was only $0.99. Very interesting.
Well, he is donating all of the proceeds to the EFF, so most likely people are just chocking the money up to a donation and bidding out of curiosity for the outcome.
Anyone have a copy of the EULA?
Corporation, n. An ingenious device for obtaining individual profit without individual responsibility. - Ambrose Bierce
So he emails it to him in a zip file; it's not a a peer to peer file-sharing community or network, nor a copy. In effect, it's more or less the original.
More likely the EFF will have to come save him when his proceeds don't nearly cover the legal bills associated with defending the lawsuit some scared industry association throws at him.
paintball
MANY rights can not be given up, no matter what you sign.
For example, slavery is illegal no matter what you sign.
Parental rights also are sometimes considered valid, even if you signed them away (as in surrogate parents).
The question is, is it possible to give away your right to sell an object and still be considered the legal owner of it. And that is very much up in the air. The right to sell is considered by many to be inherent to ownership.
Consider a bankruptcy case. Assume someone went was rich and had a huge collection of purchased songs, say 50,000 at $1. each. Would a judge be able to legally order those songs sold for? Or could the rich man say, no I can't sell them according to the TOS.
I think the TOS would be thrown out and the songs sold.
excitingthingstodo.blogspot.com
They won't get any takers, and in the mean time the original offer will keep going up. This is buying into the war, not buying into a stupid song.
Big Brother Bush is doubleplus ungood.
How is the pledge to be enforced?
A Good Intro to NetBS
I never felt that buying music was an "investment". I don't go about saying "My CD collection is worth X dollars".
I go about saying "I really enjoy listening to my CD collection."
I don't care what the resale value of my CDs is. My CDs are not a car. I don't plan to sell my CDs after I listen to them X times.
In Soviet Russia, the television watches YOU!
I know this is a joke, but there was a reason for the "US Only" requirement.
The iTMS will currently only authorize computers in the US. So if he sold it to someone outside the US, they would not be able to authorize their computer to play it.
- Vincit qui patitur.
I'd hope that he's started making contact with EFF by now. This is certainly something they'll want to be a part of.
Big Brother Bush is doubleplus ungood.
It is true that it would be near impossible to enforce this. A person could sell a copy and keep the original, and barring a legal seizure of his computer no-one would ever know. This is just like insider trading laws. Insider trading happens all the time and it is near impossible to prove. Insider trading should be illegal, and is. If we argue that we shouldn't be allowed to resell MP3s because some people may not delete the original, then we will have to argue that no-one should be allowed to resell stocks because some people may only buy after engaging in insider trading. You don't prohibit freedoms for law abiding citizens because it will be near impossible to prosecute law breakers. It's unamerican.
~ The truth does not change according to our ability to stomach it.
Some people think that by only purchasing used CD's, they are not supporting the RIAA. However, by creating a market for used CD's, full retail CD's become more valuable and this helps music companies' bottom lines.
If DRM can be made to easily co-exist with and encourage RoFS, then the perception of digital media files as a tangible good will improve, as well as the market value of digital media.
They say the first thing to go is your penis. Well, it's either that or your brain. I forget which...
When you resell that same item, the artist gets -nothing- out of the deal except for possibly a miniscule growth in fan base.
And can you tell me why they should? They've already been paid for it, why should they be paid again? When I sell my used car, should I have to forward a portion of it to Chrysler?
Remember, you have rights to fair personal use, just like with software. But if you read the fine print selling that software "used" is often forbidden by the license terms.
So don't agree to the license. As you said, you have the right to fair use, so using the software without agreeing to it is a non-issue. Unless the license grants me something that under copyright law I don't already have, I'd be pretty stupid to agree to it, wouldn't I? (Yes, I know that the license says that I can't use the software unless I agree, but since I'm not agreeing to be bound by the license, nothing it says matters.)
It certainly would not be hard at all to package digital records with a player, calling the whole package "software", the songs "content" and then being MUCH more restrictive on terms.
So I'll just ignore that license too. No big deal.
I don't think the law has a strong opinion on this matter just yet. I did read an opinion from a publishers association (book publishers IIRC) once that argued that since a copy will be perfect each time, it would theoretically be possible for everyone in the world to read a single copy by transferring. There are other good arguments against this though, so it will eventually come down to either a court or legislators deciding whether or not this is copyright infringement or a simple transfer of purchased goods.
Personally, I think it's a transfer. The mechanics of the situation shouldn't be important, and we will see exactly the same result as if he had mailed a CD. Plus, if it is decided that an electronic transfer is copying, it leads to more questions such as whether you or the machine owns the music. What happens if you sell the machine that contains your music?
I'm not sure those claims are compatible.
Here, at last, we have a major player offering a realistically-priced, legal, electronic means of distribution for music. This is something people have been crying out for since the Internet discovered file transfer, and something I'm sure many of us would want to encourage.
So this guy goes along, and turns it into one big test case. That might be beneficial if it works out, though it's not guaranteed. If it doesn't work out, he's potentially just shooting huge great holes into the embryonic legitimate electronic music distribution market. And looking at the track records, RIAA vs. small guy is a very one-sided legal battle.
To fight big test cases like this, the pro's set up zillions of minor precedents first to strengthen their argument, and they don't even look at the courtroom for the big case until they're pretty likely to win it. This guy seems to have none of that groundwork in place, and is basically flying blind.
This could be yet another case of a fool with noble intentions doing far more harm than good, which is not excellent at all.
If you disagree, post your argument. (-1, Overrated) isn't your personal censorship tool for views you don't like.
Ok people, how many "real world" ie. non-altruistic individuals would still keep a "backup" copy of the song after selling it on Ebay?
This is what the industry is afraid of and rightly so. If we didn't have 4 million Kazaa users freely swapping commercial songs, then the industry might not be so paranoid.
I know it's really easy to argue that our civil liberties are being trampled and I agree they are. But how do we fix the illegal file swapping AND maintain our constitutional rights?
My cynical side tells me that the situation will continue to develop into an us and them cyberwar. The anonymity and convenience of the internet facilitiates this. A legal battle will only serve to draw the proverbial line in the sand but will not change the situation until the two sides come together.
Does anyone agree that if music was more readily accessible (ie. iTunes), then most of us wouldn't be tempted to go to Kazaa when we really want to simply purchase the song. We don't want to drive to the store or wait for an online order to be shipped and we don't want to buy a whole album of crap along with it.
In terms of transferring songs. I have gigabytes of ripped songs from my vast CD collect on my computer. I filled up one hard drive so I buy another larger one and just copy the mp3s over. I haven't stolen anything or given anything away. What's wrong with this? The industry would make it so difficult to do stuff like this if they could.
Ok, I'm done.
M
I would have to say that, thanks to DRM, Apple doesn't give a shit what this guy does with the SONG FILE. They'll let him sell it for a penny or $400, or whatever he wants.
Because the file iteself is useless without the iTunes account that set it up. That's how this DRM works. The account is what unlocks the file and makes it play music. And I'm sure that accounts are non-transferrable, except among computers you yourself own -- and you wouldn't want them to be otherwise, since the account is connected with your credit card, and can be used to purchase more songs. That's the real protection, the thing really preventing people from spreading their iTunes files all over the net...the threat of misuse of their account. Shit, I don't even leave my iTunes sessions open anymore, because my wife once bought a bunch of Nick Drake CDs on my account(It's the same credit card, I know...I just don't want anybody thinking I listen to that crap).
So there's an issue here most people aren't seeing. There's a good and a service involved in this sale. The good is the file itself. The service is Apple's unlocking of the DRM.
When I got my house painted, I paid for two things: the paint (a good), and the painter's work (a service). When he was done, i got to keep the leftover paint. I didn't get to keep him, I don't have any control over what he does from now on. I can sell you the extra paint, but if you want to get it on your house you'll have to pay the painter. You can try and convince him that I paid for his unlimited service based on the paint he sold me, but he will probably just laugh at you...even if I promise to scrap all the blue off the house myself, and transfer it to you.
Isn't that what's going on here? The only confusion is over what the consumer's rights are, and what the medium is. Apple gave him a file and promised their services to unlock it an unlimited number of times to play it on his computers. If he gives it to somebody else, that's his own accord. The file is his to give. But the buyer shouldn't expect Apple to do anything for them. After all, they don't have a contract with Apple. Apple doesn't know the buyer from Adam, and if they don't want to perform a service for the buyer, they shouldn't have to.
Hey freaks: now you're ju
um...
the formatting of a drive isn't going to make it less prone to crashing.
a hard drive will fail in a mac just as much as it will in a pc.
From the eBay page:
Now my loss is your gain because you can get this used song on the cheap.
Yeah, rite! It's up to $9,700 now! Is this an exercise in copyrights or stupidity?
My only hope is he doesn't ruin the iTunes music store for the rest of us somehow.
Ruin what, excatly?
I fully applaud Apple for taking the first leap into a new model of music distribution, one far more compatible with the modern world. However, iTunes has quite a few flaws that make it... Well, at best useless, and at worst even less sweet for the artists than the RIAA's traditional screwing.
A buck per song... Most CDs have between 10 and 20 songs on them, and cost, surprise surprise, between 10 and 20 dollars. A buck per song, on average. Now, you can say that you don't need to buy the 12 crappy songs on an album of 15 songs, but you could always just buy the single in the first place, for a dollar or three.
Second, Apple gets 35% off the top of each sale. The rest goes to the RIAA, which it diffuses through its normal chain of profit sucking. This has the net effect of the artists themselves getting 35% less (and possibly worse than that, if portions of the standard breakdown include a flat fee per sale rather than a percentage of the gross). Yay Apple! Screw the artists (the only ones I feel sympathy for in the current war against IP) even harder!.
Next, shareability - I can loan a CD to as many people as I want to. Can you loan (more than three friends) your new purchase from Apple? Okay, you can burn it to CD and loan that out, but doing so requires spending time and money on burning a CD, and, see my next point...
Finally, if you buy a CD, you get 44KHz two-channel PCM music. If you buy from iTunes, you get 128Kbps AAC. Perhaps better than the same bitrate MP3, but still lossy. It really doesn't matter if "most people can't tell the difference" from the raw CD track, they simply don't sell the same product as exists on the CD.
Overall, iTunes has done what many of us asked for - Moved music distrubution to a model compatible with a wired world. In doing so, however, they've managed to incorporate the WORST aspects of the RIAA's stranglehold on both consumers and artists. Apple has done little more than find a way to insert itself into the musical food chain.
Yeah, rite! It's up to $9,700 now! Is this an exercise in copyrights or stupidity?
Actually, it's an exercise to post an ebay auction to Slashdot and see how high the bids will go. No seriously, what else would you expect from posting an ebay auction link on Slashdot? Mere spectating?
I think it's always been clear that virtual information, such as computer software, data and images that is copyrighted by an author is licensed to a user and not owned by a user.
If you go down to the shop and buy a DVD, you own it. Just as you own your copy of the book you bought. However, the copyright to the movie or the book text is not owned by you. That is the way it always has been since the dawn of copyright.
However, now that data (the text) can be separated from the medium (the book), they are trying push legally dubious ToS or EULAs to fool people into thinking just as you do - that you do not own your own copy.
You own a copy of the data - you have every right to sell that copy, even if it is no longer confined to the pages of a book or the surface of a disc. However, you do *not* have the authority to make copies and sell them. Or to sell the original and keep a copy.
Kjella
Live today, because you never know what tomorrow brings
You'll notice Ebay doesn't ever seem to stop sale of Diablo2 and other online virtual items that can only be "delivered electronically through the Internet". It's just there so when seller X doesn't deliver to buyer Y, Ebay can say "You're not suppose to be bidding on that type of thing and he wasn't suppose to be listing that type of thing so tough luck."
I don't think that in this case it should apply.
So do you don't believe that anything with intellectual property should not be able to be resold? Or is music somehow special?
Can I buy a copy of <insert software title here>, retail boxed at Office Depot, and then resell it?
In my mind purchasing music in mp3 format should be a non transferable license.
Is it an anti-competitive streak that wants to prevent a secondary used market from developing? (This was a huge monopolistic tactic that IBM used until the court made them stop it in 1956. See: "Big Blue: IBM's use and abuse of power".)
You did state a reason that people can copy and then resell used. So what? This has been possible for decades. So should we also ban used DVD's, Videotapes, Records, CD's, Prerecorded cassettes, 8-tracks, etc.?
What about books?
Magazines? Maps? Newspapers? Where does it end? Do you have some reason that MP3's somehow deserve special protection? Or is it only when a big corporation doesn't like it?
The reason that nobody respects copyright anymore is because of the behavior of copyright owners. See my earlier post on this .
Okay, if you say I can't resell my Encyclopedia set, or my expensive book on Garbage Collection, or my CD's, or even my mp3's, then I'll just loan them instead of selling them. I'll offer my friends the use of my encyclopedia set, my expensive book, my CD's, DVD's, and even my mp3's. Yeah, I'm sure the corporations will love that.
When taken to it's logical conclusion, the behavior of copyright holders, and also of what you are advocating, is rather scary and draconian indeed.
So how do we ensure that I didn't secretly sell Joe my encyclopedia set? We did the dirty dastardly deed secretly behind closed doors. The encyclopedia set looks good in his house just like it did in mine. Can any stranger prove that those books weren't his to begin with? Similarly, we'll secretly sell mp3's. Heck, I'll just make you a copy and keep the original.
Is that your problem? We should only have draconian restrictions on things that are easy to copy? So what happens when it is easy to copy books? In the forseeable future, mightn't all information, including books be distributed digitally? Still it raises the frightening possibility that someone will want to control that I can resell a CD or VHS tape because -- gasp! -- I might have copied it. Is this concern worth the unwarranted intrusion to make sure that I do not have a copy anywhere?
I'll see your senator, and I'll raise you two judges.
people have been buying and selling used records, tapes, and cds since their respective inceptions. This shouldn't be any different. It's still for personal non-commercial use, especially since the proceeds are going to a charity.
perl -e '$_="\007/4`\cp%2,".chr(127);s/./"\"\\c$&\""/gees
I don't see anything in there forbidding transfer of the license; it seems to be more concerned with unauthorized duplication and commercial use. Of course, now that this is getting attention, I'm sure the terms will quietly be amended to explicitly state that the user is purchasing a nontransferable license, but there seems to be some wiggle room in there at present.
Commercial usage would occur if you, for example, play the song in your bar, or broadcast it through your own radio station. None of that applies here.
(Excuse the purple prose if there is any, didn't have much time to proof read :))
Well as with much in contract & IP law, much of words printed on the paper aren't worth the paper they are written on until they are tested by the courts.
Since this arena of law is rather new, there is RELATIVELY little case law specific to this domain applicable on the books. Just the same, I'm sure many a lawyer will contest this fact and simply say this is simply contract/IP law period, and that there is no distinction between digital and traditional IP rights, case closed. That is, the various acts passed in the last decade merely clarified IP/contract laws already on the books.
That being said, if the courts and IP lawyers feel compelled to continue with this irrelevant (however legally proper) line of reasoning they will most likely find themselves in a hopeless battle. The dragon they are trying to slay with these outdated laws and concepts is hugely different due to a number of reasons including:
1. We are know dealing with a distribution medium which allows true anonymity (the next generation P2P will truly provide anonymity through encryption and sophisticated routing and transfer mechanisms). How to you enforce a law which you can have know real PROOF of it's violation?
2. The social phenomena going on here is worthy of a study. Put a proverbial bowl of candy in front of the masses and say "Don't touch!" and expecting them to listen is just plain delusional. A significant portion of people will simply not pay a price for something they can get freely, and easily, irregardless of the laws in place prohibiting it (assuming they have little chance of getting caught, see point 1). There are few parallels to situation that I can think of in history.
In conclusion, I find that laws which are unenforceable (and if you call suing college students enforcement, you fool no one but yourself) are about as useless as the law makers who create them, and until our elected officials start to realize this fact, we will stuck in this digital rights quagmire for years to come.
Cheers!
That's the position I'm in with my left kidney and my right eye. It's my understanding that I own them, but here in the US I can't sell either. (especially not on eBay.)
It also forces you to re-encode an already encoded file, both times lossy. Which isn't a very good idea, since it causes bad artifacts. (Unless AAC has some means to get around this - I guess it's conceivable, but I doubt it.)
Switch back to Slashdot's D1 system.
Who cares what the EULA says? If Ford decides to disallow reselling cars to prop up new car sales, would anybody obey them? Just because the seller desires something doesn't make it so.
This guy is selling the set of bits that Apple sold him. The problem is that those bits are combined with a service from Apple that makes them into something more than just bits.
It is like the (evil) Dish Network people and their receivers. Lets say I decide to quit using my equipment. I can sell the equipment, but not the agreement between Dish and I with regard to service needed to make good use of it.
The new owner of the equipment simply has the box, but needs to work with Dish in order to make it into something more than just an old box.
The iTunes service works the same way. If somebody actually pays the high bid in this auction, they are going to get a set of bits they cannot really use without a little help from Apple.
Since they have no agreement with Apple, they are going to need to enter into one. This will cost something of course, the price being about 0.99...
So, even though the owner of the bits has the right of first sale on the bits he purchased from Apple, selling them really is a waste of time.
What he should do is try and sell the iTunes account itself. That targets the Apple agreement in a more direct way that could actually result in something of value being transferred to the seller.
Blogging because I can...
Brilliant idea! This shows how difficult and funny digital rights management can and will be. Any DRM-solution governments (and other organizations) come up wuth, will need to stand this kind of test: does it allow people to do stuff like this without making it really complicated.
Right of First Sale rulings do not affect the explicit rights given copyright holders regarding the *transmission* of the material. Which is why I said that it seems that the guy would be in his rights if he sold the song *including* the medium where the song resides (which in this case would be his computer.) This would be analogous to selling a CD that you bought. Selling the song would selling the medium would constitute *copying* and/or *transmitting*, something which Right for First Sale judgements do not grant beyond the copyright laws themselves. If you have a specific ruling that contradicts this, I would be interested in it.
--Slashdot: News for Turds. Stuff that Splatters.