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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.
When you purchase a book or CD you own it. You do not have license to it. As your property you can do with it as you will. This is the principle of first sale.
If you wished to make a copy of it you would need a license to do so. It is only copying that copyright covers.
Now here's the tricky bit. The bit that has unleashed the entire realm of software copyright license nonsense upon us, even where you own the physical medium, such as the install CD.
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.
Nice. Ain't it?
Without this one ruling the entire world of digital data and software licensing as we know it today wouldn't exist. Microsoft would be just another vendor of "stuff," without the license club to hold over everybodies head. In fact they are where they are today essentially by being the first to comprehend the power that gave them.
In this particular case not only will the gentleman have to make a copy of the music to transfer it as music, the buyer will have no valid license to play it. Such licenses are not directly transferable by third parties.
If I buy the rights to print a book I cannot then go and sell that right on the open market unless stated in the original contract.
Apple does not need to deny such a right. They would need to confirm it.
Do you understand the issue here? A book is perceived directly and a tape or phonograph record is translated directly into music. Data must make a copy of itself into memory. While you make use of it you have, legally, two copies. You need a license only for that second instance.
It flies in the face of common sense, but it's the law.
KFG