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.
This is hilarious. I'd like to see how the RIAA spins this. After all, they haven't ever whined about used CDs being sold.
Having seen Palm Pilots that went for $199 in stores go for $289 on e-Bay, it'll be interesting to see how high the price for a $0.99 song goes.
And, no, I haven't RTFA yet, I'm going to do that now...
The Spoon
Updated 6/28/2011
Isn't it assumed that the DRM included in iTunes would disallow something like this even though it should be completely within the right of the purchaser/owner? I think this is another major problem with DRM technologies. They assume that the purchaser will desire to keep the media indefinately rather then sell it. Then again with the music industry already attacking used CD sales from cutting into their profit I highly doubt they'd want it any other way. What's better then forcing new copies of songs/albums to be purchased rather then continue the ability for it to exchange hands via a 3rd party at a possibly lower rate then the Music Companies would be willing to discount it to?
An interesting point to consider is that,
Currently Apple doesn't allow download outside US, so if he is infact legally allowed to sale his bought music, then
Can he sell it outside US, at a higher price and make profit ?
for the last time people, I am "frodo from middle eaRTH", not "middle eaST".
I don't think that in this case it should apply.
In my mind purchasing music in mp3 format should be a non transferable license.
I can see it now, people listing entire "Collections of high quality mp3s for $600! A $6000 value!" and promising to delete their files...
It just wouldn't work.
In Soviet Russia, the television watches YOU!
My only hope is he doesn't ruin the iTunes music store for the rest of us somehow.
IANAE (I am not an economist) but this looks like bad news for the recording industry.
Lots of people buy songs for a dollar. After a while, they grow bored with some songs and they sell 'em on eBay. It is unavoidable that these songs will cost less than on apple. Heck, someone may offer a hundred LEGAL songs for a few bucks!
It seems like this is a 'boomerang' effect from the dot com time:
- offer songs online
- sell a few million
- ??
- Bankrupt!!
I think if he buys the song then when he sells it he deletes his copy, This would be a fair use and trading. But if he downloads the song and sells many copies or keeps the original. Then that is moving into the range of illegal. This is a different animal then file swapping because money is trading hands. So if you download one song for $1 and then sell many copies then that is easily in the realm of music piracy. But I don't think this will go to far because this opens up a can of worms for legality and starting business that is almost impossible to enforce. If this were legal they will need to provide paperwork that makes a tax audit seem like a day at the peach.
If something is so important that you feel the need to post it on the internet... It probably isn't that important.
This is excellent and brings up quite a few legal questions.
Given that I'm not a lawyer though I'll just give my opinion (worth less than the original price of the song).
1) Unless it clearly states in the agreement made with apple, there is nothing preventing him from making this sale. He purchased the right to listen to that song in the specific format, it's his to dispose of as he chooses.
2) Making a sale for a profit in no way makes him a bad person (and he's claiming he'll be donating the money). I can't see how he could be legally required to pass this profit on to the original artist or to the supervising agency (in this case Apple who sold him the song).
3) The RIAA has nothing to do with this. As someone mentioned, they don't complain about the resale of CDs or DVDs (at this point) and there is no legal basis for them to in the future.
All and all I think this is an excellent way to bring attention to this issue. My only concern is that it will cloud the already muddy legal waters and make things more difficult for us lay folk to understand.
Cheers.
The high bid is currently $20.50. I'm sure that a few lawyers who want to get involved in the case will pump this bid sky high. It may be worth $20,000 to some lawyer trying to get famous. It's just speculation now, lets see what happens.
Sadly, there's probably some truth to that. Since filesystems don't actually delete a file when you delete them, the residual bits of data would be the RIAA's biting point.
Saying Android is a family of phones is akin to saying Linux is a family of PCs.
You know, I'm all for having the right to purchase a song online. I love digital music. I never listen to my physical CDs anymore, just the ripped versions I created.
... do we really want to turn them off of it now?
... if you're going to buy a digital recording online, do it from the source so that the artist gets their money AND it is made clear that online downloads are becoming more popular.
BUT...
* When you sell off a CD, you are selling a physical item and at least in theory that is some measure of protection against you keeping a copy after having sold it.
NOTE: This to me is an argument not for being able to sell "used" digital copies, but against being able to sell even used CDs anymore. When CDs came out the technology for consumers to digitally copy discs just wasn't there. Sort of like when the authors of the US Constitution were talking about firearms they were thinking muskets, not automatic rifles. The technology changed but no one realizes that the "rights" associated with them should also change.
* When you buy a CD or a digital song the artist gets some of that money. With digital copies the artist's percentage usually grows dramatically. When you resell that same item, the artist gets -nothing- out of the deal except for possibly a miniscule growth in fan base.
While the RIAA is a crappy organization, I believe they are going to go down just as inevitably all empires do. Let us not take the artists down with them.
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. Perhaps artists and record companies will have to start defining similar terms. 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. Something like that will happen if people continue to try to erode the rights of the author and publisher. It is not all about consumer rights. Those publishers of digital music are trying to offer an alternative we've all been screaming for for years
Bottom line for me
It is more productive to voice thoughtful opinions (reply) than to judge (moderate) others.
Interesting concept, except, there is a big flaw in you experiment.You need either an iTunes or iPod to listen to any song from ITMS. Only way you can give this song to anyone that does not have either one of these is by burning a CD, which I dont think you are allowed to do.
That was one of the comments posted on the website. Does anybody know if the contract/agreement actually prevents you from making backups for personal use? Aah, I see it now, just struck me: you are allowed to make as many copies as you want (of CDs, tapes or any media for that matter) for PERSONAL use. BUT you cannot sell the backups. You could go ahead and sell the original, but then you would actually have to destroy all the backups.
In the iTunes case, the guy would have to devise some way of selling the original version (not the backups on secondary media), which would be accessible only through iTunes or iPod.
Though this is just an experiment to test the current copyright laws, just the fact that you would need iTunes or iPod to listen to the stuff would prevent it from being a commercially viable practice, which could harm iTunes and the like.
An Indian-American Hindu committed to non-violent thought/speech/action alarmed by the global explosion of radical Islam
Go into iTunes and do a "Get Info" on any purchased music. Right there in the file it has your Apple ID and information. It look like me that before you buy the music the iTMS server actually embeds your account details in each file.
If that's the case then he'd have to get a new file from Apple (which prolly ain't happening) to give to the buyer
For everyone out there who's wondering, "Why would you pay $20 for this song...geez!!", let me explain why I just put in a bid at $37.00 (username of schnarff over on eBay, too, if anyone cares to check).
:-)
This auction isn't about just getting a song -- I own no Mac hardware/software, so even if I won the auction, I couldn't play the song. It's about, as the seller says, testing basic rights in the digital age -- whether the (relatively) undisputed right of people to sell used CDs, etc. still exists when dealing with electronic formats. I figure, the more people who bid on this thing, the greater the interest will be shown to be in retaining basic rights in relation to digital media.
Besides, I know I won't win with the attention Slashdot is throwing at this thing, so the money is meaningless. That, and I wouldn't mind sending a $37.00 donation to the EFF anyway, since that's what the seller is doing with the proceeds of the auction.
How To Get Humans To Mars
What if I buy a cassette of some album at a Thrift store, then is it legal for me to jump on Soul Seek and download it? Could I make a CD of the album and legally sell it with the cassette on ebay?
-Paul
I'd be curious to know how this works if you sell on a CD or cassette holding copyright material; presumably there's some implicit permission to transfer granted when you buy it (or it's been technically illegal all the time, but no-one ever complained). Any IP lawyers out there?
Umm... That's exactly what this story is ABOUT. The uncharted ground of intellectual property law: Does the implicit permission to transfer follow the medium (CD/cassette) or the data (song)?
The IP lawyers (EFF and RIAA) will be looking at this one, or so we all assume.
Dare to Hope. Prepare to be Disappointed.
Upon attempting to open this file on a computer other than the buyers computer, you will be prompted for a user name and password. This is the user name and password of the iTunes music store account. So unless you change the format (which can be easily done with QuickTime 6 Pro, a $30 reg fee), you will have to give the buyer your account information. Which would allow them access to your acount info. Here is a link to the Terms of Service [apple.com] Here is a link to the Terms of Sale [apple.com] In the terms of sale, there is context which could be regarded as relevant.
DRM is used to keep people from "abusing" the digital format and duplicating it all over the place, right? So you could argue that if DRM is there, it puts a set of rules in place, and if you're not breaking them, then it's okay.
Forget about what should or should not be legal. It's like the law -- how do you know if it's not okay to do something? It's against the law. Can I wear a fish on my head? Sure, it's not against the law. Can I shoot someone? No -- it's illegal.
By the same token: can I copy this file onto 4 computers? No, the DRM won't let you. Can I sell it to someone else? Well, if the DRM lets you, obviously it's okay.
c-hack.com |
Apple Apologists argue that its the user's fault for not backing up the song immediately after downloading and that a hard crash is the same as having a CD scratched or stolen. While there are many steps a CD owner can take to prevent scratches and theft, there is very little an iTunes user can do to prevent a hard drive crash from occurring. Backups are important, but short of backing up every song the minute you download it, there is no way to prevent people from getting screwed.
..wouldn't it be a way to "legitimize" file-sharing (Kazaa, etc)?
I mean couldn't one set-up a legal business where the primary service they offer is the selling of iTunes mp3s amongst users? In this way the transfer would be legal but it would be illegal if a person did not delete their copy of the file.
"Injustice anywhere is a threat to justice everywhere." - Martin Luther King, Jr.
- De-authorize his computer from iTunes (so that the song will have its full, legal ability to be authorized on three machines)
- Copy the file to whatever media he's using for transfer
- Delete the original
- Cancel the credit card used to purchase the song
- Send the song, the Apple ID and password to the buyer
Simple!The auction (last time I checked) was almost at $10k. If the high bidder has no intention of paying (0 feedback, obviously fake ID) then the seller will have to pay ebay fees of, what, 5%? That's going to end up being around $500. (Sure, you can file a non-paying bidder alert, but those are a pain).
Then again, maybe someone really does what to make a point? It would be cool if the proceeds were to be donated to the EFF...
"Teachers leave us kids alone
This would appear to be a way around the eBay policy restriction you cite.
All of which is besides the point, anyway, unless/until eBay decides to cancel the auction (and refund his listing fee).
-renard
You forgot to add your IANAL disclaimer.
Seriously, the only way this becomes a "test case" is if he gets sued, which I really doubt will happen. He is the legit owner of the digital file, he's made a good faith promise to transfer ownership, and he's not circumventing the DRM. The only real issue here is that Apple apparently lacks a transfer mechanism. At the moment, they can simply say it's not technically possible, but they can certainly provide one later (for a fee, of course). No one is going to court over this.
It seems to me that there may be a bit of a confusion that underlies this notion of selling the song. There is, for the purposes of the law, a difference between the physical object (i.e. the physical file) and the rights to the content of the file. Consider the case of an e-mail. If I send an e-mail to person X, then the physical object (i.e. the arrangement of 1s and 0s that make up the data), belongs to person X. HOWEVER, I still retain the rights to the content of the e-mail. This may sound curious and be news to many, but that is the way things work under the law. One consequence of this is that, without obtaining prior permission, the good old 'Forward' button in your favorite e-mail program is in fact a copyright violating device. In the case of the music file, it may be the case that the person who bought the file from iTunes has the right to sell the physical object, without being able to sell the right to the content of the file. So, I won't be bidding anything (and certainly not $20!) for an object I could own, but not use.
I feel compelled as an IP lawyer to say that almost everything that has been said in this thread is completely wrong as a matter of copyright and contract law.
While the first sale doctrine does apply to an outright sale of a product, almost certainly the download of a song from any online service is subject to a license that restricts the resale or transfer of the song. The transaction he engaged in therefore was not a sale, but a license.
Music stores could do the same thing, making you sign a license restricting your disposition of the CD before you leave the store. There would not be any copyright problems with such a license.
The whole concept of selling the song raises a question about the method of filesharing music over the internet. What if a p2p system prevented the owner from using the song at any time another user was listening to it, and only one user could listen to it at a time? I own hundreds of songs. As long as I have given up my rights to those songs while someone else is using them, would that be legal? (Not looking for legal advice, just conversation).
I'd just like to point out here, that if I were an evil mega-corporation, I'd let this first instance pass. Who needs all this publicity? Is this hitting any major news sites? Not that I can find, and it won't if noone reacts to this sale. So what have we done here? Someone has spent several hundred dollars on nothing. No precedent is set either way since this never hits the courts.
Time passes...
This practice becomes widespread. NOW someone with something to lose picks up on it. What happens? They sue the high school and college students for WAY more money than they ever would have gotten for selling the stuff.
Wait. That already happens.
Remember folks, just because you try to pick a fight, they can walk away. And we know these guys like to rabbit punch you as soon as you let your guard down.
This is a very important issue. I am glad to see someone willing to take it as far as possible.
When you buy a track with DRM what are you paying for?
iTMS gives you
The right to authorize playback on up to 3 Macs
The right to burn the music to standard audio CD
The right to copy the music to an authorized playback device (iPod)
Microsoft DRM thas a set of varying rights provided by the retailer.
x Number of playbacks on this pc
x Number of CD Burns
Ability to back up licence or not
Track playable for x amount of time
Can copy to DRM capable playback device or not.
At the most restrictive you could have a track that is only playable a single time on a single device and not transferable. MS just designed the system, so they claim that any rights you have are just between you and the retailer.
So with the iTunes system, you can authorise a Mac and deautorise it if you want to sell the computer. What happens if the hard disc crashes, or a powerbook gets stolen? You loose one of those autorizations. If that happens 3 times, you loose the right to play back the music you paid for forever? Ok so you can have backed it up to an audio cd, can you then rip the CD back onto a mac as an unprotected AAC, or is that in breach of the copyright?
If companies want to sell you something intangible that you have no right to copy or resell then they should have to provide you with a duplicate download forever. If you are only paying for a license then at least that license should last forever.
I remember watching a kids TV program where they had a record executive answering questions. One question the kids asked was "Why are CDs so expensive when they only cost £1 to produce?"
Of course the executive went on about artist development, recording studios, marketing, etc. So when you buy a CD you are paying for more than just a piece of plastic, you are paying for the money spent on the creation of the track and its presentation.
So what happens if your CD gets scratched? Are you expected to pay full price again? For the right to go on listening to stuff you already paid for the development of? There used to be a fair use right to make a backup, but these new copy protected CDs have put a stop to that.
You should be able to buy replacement media for no more than the cost of production + delivery.
When CDs were first sold they were presented as everlasting digital perfection. A lot of people bought CDs of records they already had on Vinyl to preserve their music collections forever. Its become clear that CDs are far from indestructable. Also the industry is trying to get people to upgrade again to DVD-Audio and SACD.
If I want to buy a SACD of a track that I bought on CD should I have to pay for the artistic development and recording studio time again? Or just the media + packaging and possibly remastering?
All this needs to be resolved and soon. Before the matter replicators arrive. You downloaded the pattern for a loaf of bread? You are only allowed to make one loaf and not keep a backup of the pattern. Any further copies of the bread require payment to the Grain Industry Association of America.
"Taligent is still pure vapor. Maybe they'll be the last who jumps up on Openstep... "
Somehow I'm a bit suspicious of a huge bid by an account that has feedback of 0 though it has been around for a year. I suppose it could be an EFF lawyer who can write it off....? Or would there be a legal problem with that potentially being a shill? I wonder what will happen if the winner turns out to be a deadbeat? Perhaps he should have done this with a Buy-It-Now price of $10 or something just to get it over with before someone has the chance to mess it up.
Wouldn't be surprised if this makes it to TV news....
The RIAA is always trying to equate music files with physical property (ie - downloading = shoplifting a CD). This guy is making the same equation, and excersizing the right to first sale which he would have with a physical CD.
Wonder if the RIAA's tune will suddenly change?