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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
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!
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.
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.
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
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.
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 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
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 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.
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.)
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.