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)

[sh00z]

Right now I've come up with a couple ways that the transfer of ownership could take place.

It's simple. I've already moved an iTunes purchase to a second computer. You just have to enter your Apple ID and password on the second Mac to authorize it. Now, here's the fun part: once somebody has your Apple ID and password, he can go hog-wild at the Apple Store online, buy anything he wants, and it will be charged to your credit card. This includes hardware and software purchases too, not just iTunes music. So, in addition to deleting the original file from his computer, the seller will first have to:

1. De-authorize his computer from iTunes (so that the song will have its full, legal ability to be authorized on three machines)
2. Copy the file to whatever media he's using for transfer
3. Delete the original
4. Cancel the credit card used to purchase the song
5. Send the song, the Apple ID and password to the buyer

Simple!

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:Article text (already slow to subscribers)

[The Unabageler]

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.

Re:Article text (already slow to subscribers)

[Lord Dimwit Flathead]

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.

Re:Article text (already slow to subscribers)

[tftp]

IANAL, but it's not a problem. Sale of a personal property is not a commercial usage because how can one use something that he is parting with? As another example, CDs are also authorized to be used non-commercially, but it is legal to sell a used CD.

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.

Re:Article text (already slow to subscribers)

[moonbender]

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.)

Re:Article text (already slow to subscribers)

[timeOday]

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.

Re:Article text (already slow to subscribers)

[LL]

> So, in addition to deleting the original file from his computer, the seller will first have to:
[various steps to isolate account]

This is worthwhile investigating as from a legal standpoint, property law requires that not only the _choses in possession_ (a legal term covering personal moveable chattels)be delivered but that the means for excluding others be also passed over. Compare this with a key+lock metaphor.

_Actual delivery_ assumes that not only the key is handed over, but the right to change the locks is also given. Note that this is quite different to _symbolic delivery_ (cf wooden key at 21st which symbolises the removal of the detriment of adult supervision). The biggest problem is _constructive delivery_ (such as P2P) where the object is copied but could be removed due to cache.

Whilst I'm not familiar with US jurisdiction, I have been eyeballing the Australian Digital Agenda review (basically the DCMA that the US arm-twisted the rest of the world to adopt via TRIPS) and IMHO the notion of property in the digital age need some careful handling in order not to infringe on statuatory rights (don't bug me ... complain to your legislature about Eldred). However, it seems that a clear description of how the iTune can be wrapped and deteched could prove an interesting case of enabling flexibility in exchanging 3rd-party IP (effectively a pointer + hyperlink wrapped in revocable attributes) whilst obeying the law.

LL

Sounds reasonable

[Brahmastra]

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.

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: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

Re:Sounds reasonable

[Enry]

Gads.

I was certainly not riding bigwheels, I was a poor just-graduated-from-college-and-working-for-the-go vernment employee. Which made used CDs really appealing.

I remember talking to the owner of one of the stores I frequented and he said the retaliation from selling used CDs was to withhold marketing material (or money?) from the store. It was a small enough store not part of a chain and in a really good location that I don't think it mattered to him.

Re:Sounds reasonable

[MicroBerto]

I was the fastest bighweels rider in the neighborhood. You'd be toast where I came from, buddy.

Re:Apple usage policy

[Anonymous Coward]

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

Son of a bitch.

[BoomerSooner]

I sold that song yesterday for $0.25. If I'd only known that I could post it to slashdot.

Slashdot, News for Nerds and eBay listings.

How much will he get for it?

[jdray]

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...

Re:How much will he get for it?

[frodo from middle ea]

I got the memo.

And yet you haven't put on the coversheet on your TPS report.?

Re:How much will he get for it?

[JonnyElvis42]

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.

Let's just say that the profit margin seems to be a little bit higher on resold digital music.

Wait till all the venture capitalists find out!

DRM Restriction

[Broadband]

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?

Re:DRM Restriction

[Xaoswolf]

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.

Re:DRM Restriction

[arcdx]

iTunes files can be played on up to three authorized Macintosh computers, according to this. I figure if the seller has only one computer, he could conceivably authorize the buyer's Mac to read the file, too.

Someone with iTunes, let me know if that's not how it works. Do you have to pre-authorize the computers with iTMS before you even download it for that to work?

Also, as you can see in the article, if they have older versions of the iTunes software, he could stream it to the buyer, as well.

Re:DRM Restriction

[fahrvergnugen]

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.

Re:DRM Restriction

[Rich0]

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.

Re:DRM Restriction

[gurps_npc]

That is incorrect, although a popular idea among business attorneys.

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.

Re:DRM Restriction

[Odinson]

By clicking this you agree to ship us your first born postmarked within 48 hours (business days only). Click here for packing instructions.

Just because it's in a contract doesn't mean it's legal. Much less enforcable, moral, or in a sane alignment to the natural doctrines of the free market and capitalism. It just means another lawyer is off the bread line.

Re:DRM Restriction

[terrymr]

Suppose all credit cards came with an indentured servitude clause?

You mean yours don't ? Damn I'll have to get some new ones.

Re:DRM Restriction

[dasmegabyte]

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.

Re:DRM Restriction

[Speare]

If it's non-negotiable and mandatory, it's a fee and not a deposit. Sue in small-claims court if required.

Re:DRM Restriction

[jaymzter]

Just to be specific, slavery is not illegal in these United States, just abhorrent
emphasis mine

Amendment XIII

Section 1. Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction

Re:DRM Restriction

[po_boy]

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.

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.)

Re:DRM Restriction

[linkjunkie]

It's linking the good to the service that is frightening to me.
If I can no longer purchase a good without having an associated service forced down my throat...
It seems to me that I never really purchase the good, but merely rent it's use through a service.
Seems like nirvana for the RIAA!
And a screw job for the customers!
What happens when the popular file format changes? What happens when your old MP3 player won't work on winblows 2010ZZ? What happens when the TOS cause the player to break and not play your old files? No no no, not the present TOS, the add-ons that came with the last service pack. Buy them again! That's what.
Don't believe me, I've got boxes of records, then tapes, now CD's! Changing file formats seem to be a logical extension.
Did we mention what happens if you get in ANY kind of dispute with your certified media provider? You will temporarily lose access to all of your own media.
I know I'm being alarmist, but it comes down to this,
We either purchased the good and it's ours to do with as we please, or we didn't.
The online services I've seem don't really allow purchases.

Re:DRM Restriction

[dasmegabyte]

Just because something is useless without the service doesn't mean it isn't legally yours.

My dad works in the cable industry. A lot of people have been known to keep cable boxes they paid for LONG after disconnecting from cable. Now, these boxes are addressable...totally useless without a cable service and nobody else in the area would use them. Worthless. But people kept them anyway -- most of them due to some half hearted dream of "stickign it to the man" and using the internals to descramble cable.

You can't descramble an adressable signal because unless you pay for it, you don't get the signal. There's nothing to descramble. So the box really is useless outside of its intended purpose with the intended service provider. Which is why most cable companies rent boxes now (though some people STILL buy them, try to use them, and call my buddies in customer service trying to con them into sending the $50 prize fight).

This is EXACTLY what DRM is. They're selling you the right to use the music, NOT the right to distribute it. If you're not okay with that, well then buy a damn CD. It's only $5-8 more expensive. If your right to resell is worth that much (hint: it isn't. most used cd shops will only give you 3-5$ per disc, and half.com isn't a whole lot better all things considered), don't use iTunes. But don't try and cry foul -- it's that same DRM license that convinced the record company assholes to let you buy the cheap music in the first place. And since I have an iPod, listen to most of my CD music on mix CDs I burn from iTunes, and I've never sold a CD in my life (yes, I still have the Damn Yankees s/t somewhere, along with Kris Kross), I think iTunes is awesome.

Re:DRM Restriction

[dasmegabyte]

Why does it frighten you?

iTunes doesn't REPLACE CDs, it's an ALTERNATIVE to CDs. They still sell tapes, too. Some artists even press to records, and there's also DVD Audio, SACD, and even DAT around. You still have choices. If one of them "frightens you," use another one.

Personally, I'm frightened by the prospect of paying $18+ for a CD when only a dollar or so goes to the artist. I do it anyway, because I like music, and know over the life of the CD it'll amount to hours of listening per penney paid on music. But if my music budget (I used to have one, $200+ per month) stretches further with artists still getting $1+ per album, that's good. I'm still paying the artist to make art -- something that does not happen with used CDs, and that's fucking reprehensible even if it is (and should be) legal.

In the end, more artists get money out of my pocket. I get more music. I smile more. Do I care if I can't IM the song to my friend or sell it on ebay or return it if I don't like it? Nope.

iTunes service being "shoved down your throat" is saving me between 3 and 8 dollars per CD. That's less then what I'd make by selling the CD anyhow. Furthermore, it's not crippling my right to listen to music...I can burn it to a CD yourself, thus preserving my music even if iTunes screws the pooch next week and never comes back.

Apple's DRM is very simple, it's built into the player and the service in a way that anybody can understand. I'm not worried about them dropping support for my old iPod any time soon. And Apple has not to my knowledge ever tried to sneak in something sneaky into a newer TOS...in fact, I seem to remember a clause in the iTunes signup that said they can't.

It's not "we either purchase it and it's ours or we didn't" anymore. Welcome to the 21st century. Content is on-demand now -- they don't give you as many rights, and they charge accordingly. If you want to own music, go buy a damn tuba.

Resell ?

[frodo from middle ea]

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 ?

Transfer?

[Dark Paladin]

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?

Re:Transfer?

[mrpuffypants]

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

Re:Transfer?

[RickHunter]

Actually, its pretty easy technically, as long as Apple supports it through FreePlay. You tell the music store you've sold the file to this other guy. It authorizes him to download and play it, and maybe even handles the money transfer. Then it prevents you from downloading it or registering any new copies of the file. You've still got the problem of the seller keeping already-registered copy, or having burned one off to a CD, but you've got exactly the same problem with a used CD. (And CD copying is no less trivial in this day and age)

Re:Transfer?

[Honest Man]

Well I hope the EFF appreciates his donation - because he's going to need their legal services assistance, lol.

That said though you bring up a good point. Part of the value inherent with purchasing music cd's etc is its transferability. It could be argued too, that without this 'value' being given to the license holder to transfer their rights to another that the value of the music(or other future media to be bought in this type of format, ie: movies) is substantially lower because you are not able to really 'own' the rights to the use of the license you purchase in the same way you could by purchasing a cd.

If they are going to have ridged licensing like that they need to bring the price down to a respective level with the depreciated value - perhaps a song with a non-transferable license would cost 15 cents per song and a song(license) with a flexible license without limitation of transfer as long as only one instance of the media were to exist, would cost the 99 cents per song(license)?

Pandora's box has been opened - I just hope this guy is ready for the RIAA attack on him. Heck these days it's probably even illegal to put the cover picture of the cd in his auction without buying a license, since its bigger than a thumbnail image. :(

Highest Bidders Name

[Hex4def6]

The highest bidders name at this time is a guy called Unicks - judging from his name, I wonder how much trouble he's goiong to have to go through in order to play it :)

I like freedoms and stuff very much but...

[FileNotFound]

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.

Re:I like freedoms and stuff very much but...

[Peyna]

Kinda like the people who buy a cd, copy it, then sell it to a used music store?

Re:I like freedoms and stuff very much but...

[FileNotFound]

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?

Re:I like freedoms and stuff very much but...

[beenay]

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.

Re:I like freedoms and stuff very much but...

[rarose]

Yes true and all, except this guy has deliberately made himself *VERY* *VERY* high profile.

For him to pirate now is like slamming on your brakes screeching to a stop next to a cop car, flipping him the bird and then peeling out down the street in a Hazard Yellow Ferrari. You ain't going to blend into the background...

Re:I like freedoms and stuff very much but...

[DickBreath]

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?

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.

Hmmm..

[BMonger]

My only hope is he doesn't ruin the iTunes music store for the rest of us somehow.

Re:Hmmm..

[pla]

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.

usage policy v legal rights, which has dominance?

[EvilAlien]

That is certainly important, but I wonder if overly restrictive terms in Apple's terms and conditions would be overruled/nullified by the legal rights to this property. Of course, it depends on what it is that this guy has actually (i.e., legally) purchased.

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.

Re:TOS compatible

[period3]

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

It depends on the use.

[jellomizer]

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.

read the article?

[evacuate_the_bull]

In case you're curious, the filename is 07 Double Dutch Bus.m4p and it is 3,391,504 bytes long or 3.2 MB

it's probably an .m4p

but not for long ;)

Terrible Choice Of Song

[RobertPearse]

Jeez, what a terrible choice for testing legal rights. Why couldn't he have picked something like "Money", "Fight For Your Right (To Party)" or "Equal Rights" by Peter Tosh.

Or maybe he's should pay the buyer to take the crappy song from his crappy collection of movie soundtracks.

Excellent

[LLWhipist]

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.

Coming soon to an OS X Mac near you...

[Anonymous Coward]

"Software Update has found the following updates:

iTunes 4.0.2
Closes loophole in iTMS EULA which implies transferability of purchased music to a third party. It is recommended that all users of iTunes install this update."

Shipping?

[CGP314]

Will ship to United States only.

Are there high email costs to other countries that make shipping too expensive?

Re:Shipping?

[Anonymous Coward]

iTunes currently only works for United States residents.

Re:Shipping?

[Arkham]

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.

Huge profit

[MyRuger]

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.

Re:Huge profit

[Sphere1952]

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.

Re:Huge profit

[Grishnakh]

It's up to a whopping $300 now!

I wish I had thought of this...

Re:Huge profit

[gearheadsmp]

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?

Re:Huge profit

[Anonymous Coward]

According to the RIAA, the song is at least worst $150,000.

Re:Apple usage policy

[NanoGator]

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

Betcha there is soon.

Re:Have no doubt...

[I8TheWorm]

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.

Re:That's the joy of eBay

[jpmahala]

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.

Hmmm

[Jahf]

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.

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 ... do we really want to turn them off of it now?

Bottom line for me ... 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.

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.

Re:eBay policy

[googlecat]

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.

Re:eBay policy

[renard]

If you read the discussion on his website (or posted above), you can see that what he is proposing is really more along the lines of "selling" a character in an online RPG. He is effectively going to "sell" the AppleID account that owns the song to the highest bidder.

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

Restrictions on changing format?

[GillBates0]

Posted by: Sack at September 3, 2003 02:08 PM
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.

Re:That's the joy of eBay

[cptgrudge]

Could be that they feel that their money is being put toward a good cause; increasing awareness on the issue. Or maybe they like the fact that this person said that the proceeds will go to the EFF after the transfer is complete. I do agree about the inflating prices, though.

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.

Re:eBay auction

[Bobman1235]

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.

It's not stated specifically in the terms.

[NaugaHunter]

The only thing close from Terms of Service:

You agree not to modify, rent, lease, loan, sell, distribute, or create derivative works based on the Service, in any manner, and you shall not exploit the Service in any unauthorized way whatsoever, including but not limited to, by trespass or burdening network capacity.

But that's only derivatives. The only mention close to this topic in the Terms of Sale is this:

All sales on the iTunes Music Store are governed by California law, without giving effect to its conflict of law provisions.

So there isn't anything specific about reselling it. However, if sold in the DRM version there's no guarantee the purchaser can unlock it, unless the seller shares his buying info and authorizes the other computer. Apple can probably enforce that - they are no obligation to authorize anyone other than the original purchaser. If he transfers it to CD or mp3 to sell/ship, then he probably would place himself in danger of prosecution as an unauthorized distributor of copyrighted work. {e.g. I probably can't take a CD, make a tape, and then sell that tape even if I then destroy the CD. - the physical equivalent of what he might try if the mp4 can't be transfered.)

Re:Apple usage policy

[Blue Stone]

Whilst a new EULA would apply to new downloads (I believe the EULA says the terms can change at any time) it wouldn't apply to past downloads.(IANAL.)

Anyone have a copy of the EULA?

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

Why I Bid On The Song

[schnarff]

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. :-)

Donate the proceeds to the EFF? Hah!

[raehl]

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.

Profit!

[terradyn]

1. Buy song for 99 cent.
2. Post on ebay.
3. Media blitz (tell slashdot money is going to EFF).
4. ???
5. Profit!

In order for 5 to work, guess what he has to do in 4.

What I've always wondered...

[Paul Slocum]

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

Re:What is legally happening here?

[Divide By Zero]

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.

Giving up user/passwd

[barnetta]

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.

Copy of the Music Store agreement

[Sophrosyne]

Woops sorry forgot to include this:
iTunes Music Store Terms of Service.
Terms of Sale.

That's the point of DRM

[jcsehak]

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.

Re:PRofits to be donated

[IM6100]

How is the pledge to be enforced?

how about the right to redownload?

[asv108]

While this example does demonstrate one of the short comings of digital music services, I think a more important issue is redownloading. If an Apple iTunes music service user happens to experience a hard drive crash, they must repurchase all downloaded songs that were not backed up. That's right, even though Apple keeps track of your purchase history, and even prompts to tell you that you are buying a song that was purchased before, iTunes users must pay again for the song.

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.

Re:Donate the proceeds to the EFF? Hah!

[Sphere1952]

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.

Re:eBay auction

[El]

I hope the winning bidder is a lawyer!

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.

If this really does work...

[FreshFunk510]

..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.

$320!!?!

[LaForce]

With all this bidding you're going to convince the RIAA that their music might actually be worth the ridiculous numbers they use in their court cases. Then when cost goes up, everyone who hasn't purchased the new CDs can be sued, because the decreased sales must mean that everyone is pirating! Whee, slippery slopes are fun! :)

Shoulda been Metallica...

[siskbc]

...that would have been damned funny. ;)

Suck on this, Hetfield.

Right of First Sale helps the music industry

[Esion Modnar]

RoFS adds value to any physical media which you purchase, whether it is a CD, LP, etc. If you know you can resell an item, you are probably willing to pay more for the item than otherwise.

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.

Re:Hmmm

[schon]

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.

Re:What is legally happening here?

[91degrees]

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?

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.

Not so excellent?

[Anonymous Brave Guy]

This is excellent and brings up quite a few legal questions.

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.

Re:Not so excellent?

[Prong]

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.

This Boggles The Mind

[Compulawyer]

Not that someone wants to resell the music they downloaded but rather that someone is INVITING a lawsuit. Hey, IP lawsuits are the way I make my living, but I would NEVER suggest to a client that they become the test case unless it is the only way for said client to survive.

Simply put, this is one of the most idiotic things I have ever heard. I predict that Apple totally ignores this - and any/all other sales like it until a secondary market develops. Even then, I see Apple simply taking the position publicly that once it initially makes the sale, it has no further involvement with the process. I also predict an analogy to used record shops. By the way and for the record - I use Apple products in my home and work, but am not affiliated with it in any way.

$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.

The real issue is...

[ScooterBill]

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

$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:$9,600??

[TNLNYC]

At this rate, this little track may end up making more money than the movie it's associated with :) Well, not quite but considering how quickly the auction is going up...

Check his feedback!!

[nolife]

Potential scam!! The seller only has 1 feedback and it's over 6 months old. It's only a A++++++++. I'd be careful of anyone who recieved less then 15 +'s in a single feedback comment. Buyer beware.

The Seller is going to get screwed

[Nept]

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...

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:Apple does not make hard drives or controllers

[heXXXen]

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.

Auction's prohibited by Ebay rules

[dmoynihan]

their lame policy reads as follows:

Downloadable Media Policy

eBay prohibits the listing of items or products to be delivered electronically through the Internet.

Examples
Here are examples of items that may not be listed on eBay because of the downloadable media policy:

* 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

Guideline
If you are the copyright owner of the downloadable material that you are listing on eBay, make sure you say so in your listing!

Warning

Listings violating eBay's downloadable media policy may be ended early by eBay. Multiple violations of eBay's downloadable media policy could result in the suspension of your account.

Read more information on copyrights.

Unfortunately, the auction will be taken down soon...

The high cost of eBay

[31415926535897]

Now that the song is $9,700, I sure hope that the winning bidder actually plans to pay.

As it stands, the eBay fees are going to be $158.92, and it would stand to reason that the song will go for a lot more in the next 6 days. eBay's policy is that the seller pays them the fee whether or not the winning bidder pays (so if this song went for $100,000, georgeh734 would be screwed out of over $1,500 if the winning bidder didn't pay).

And the high bidder has a feedback rating of 0 right now; if I was the seller I would be sweating a little right now.

(And if he does pay--through PayPal--then georgeh734 will have to pay eBay even *more* money, but don't get me started on that issue)

I hate fake bidders

[nuntius]

Yeah, but I don't trust this $9,700 bidder. Its hard to imagine that someone who joined EBay on April Fool's day 2003 and has no history is reliable. He's probably assuming someone else will bid higher.

In fact, the last real bidder was macjedi. I wonder what his bid was.

Your filz ownz you. (BBEdit says so)

[switcha]

In BBEdit, I found no fewer than two times my name and iTunes user ID were in the hex dump of one of my purchased songs.

This guy can contend his interpretation of the License all he wants, but my interpretation of :

No portion of the Service may be reproduced in any form or by any means. You agree not to modify, rent, lease, loan, sell, distribute, or create derivative works based on the Service, in any manner...

from Terms of Service

is that he can't sell a work from the Service (iTMS). Not to mention that any transfer via email, upload, etc, entail making a copy as you send it. Finding prohibition of copying ain't too hard.

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.

Re:What is legally happening here?

[ncarey]

You're correct about the Right of First Sale. It's enumerated in 17 USC 109:

Notwithstanding the provisions of section 106(3), the owner of a particular copy or phonorecord lawfully made under this title, or any person authorized by such owner, is entitled, without the authority of the copyright owner, to sell or otherwise dispose of the possession of that copy or phonorecord.

However...you're incorrect here:

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.

17USC117(a)(1) specifically exempts copies made as a necessary part of using it:

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 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

Unless in TOS, and maybe even then, you own it.

[Kjella]

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

This is a CYOA policy

[sheetsda]

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."

Re:Is resale of CDs legal?

[Tsu Dho Nimh]

Yes, resale of items you have PURCHASED is legal.

It's called the "Doctrine of first Sale", and it has a Supreme Court decision from the early 1900s, and basically says the original seller has no say about what the buyer does with a legally acquired copy (aside from being able to prohibit copying it). Especially, they can't keep you from reselling it.

I don't get it

[BoyHowdyAAF]

I don't get it. Why would people want to sell a song they downloaded?

::listens to Mandy Moore song just downloaded from iTMS::

Oh. Now I get it. ;)

Copyright confusion

[Dr_Ish]

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.

First Sale Doesn't apply if there is no sale

[Anonymous Coward]

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.

Re:First Sale Doesn't apply if there is no sale

[Enthrash]

(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!

Re:Why delete it?

[90XDoubleSide]

For those of us not using ITunes could someone tell us what rights you are granted when you make a purchase? (What apple actually says...)

Your use of the Products is conditioned upon your prior acceptance of the terms of this Agreement.

You shall be authorized to use the Products only for personal, noncommercial use.

You shall be authorized to use the Products on three Apple-authorized computers at any time.

You shall be entitled to export, burn or copy Products solely for personal, noncommercial 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 in 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 security technology or software that is part of the Service or used to administer the Usage Rules.

The delivery of Products does not transfer to you any commercial or promotional use rights in the Products.

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.

It's just the price of immortality

[throbbingbrain.com]

It's up to $9,700 now! Is this an exercise in copyrights or stupidity?

Why have a star named after you when you can immortalize your name forever in a high profile copyright case?

Actually they do. Do a little research

[Cid Highwind]

Who the fuck gave this a +1 informative? Someone has apparently never heard of the right of first sale or even been to a used music store.

If I own a CD or a tape, I can sell it later. While I don't own the copyright to the music, that copy of the music is my property, and I have a legal right to sell it. This right has been upheld in US courts over and over again.

Do you pay for media or content?

[EddWo]

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 &#163;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.

Huge bid by year-old user with no feedback...

[Kazoo the Clown]

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....

Re:What is legally happening here?

[Anonymous Coward]

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?

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.

The auction is legal, but worthless

[PotatoHead]

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.

Don't these fuckers get it?

[Ritontor]

This is exactly why i'll never sign up for some DRM protected online music/video/whatever system. If I buy something, I feel it is my right to do whatever the fuck I then want with it, even if it's illegal. What other industry has this sort of control over the product you've purchased post sale? I can't think of any.

If i go and buy a screwdriver, i'm sure that i can take it to my friend's house and use it to screw together a cupboard. I'm sure i can also take said screwdriver and stab a hobo to death with it. Can you imagine living in a world where your screwdriver automatically self-destructed when you stuck it in to a hobo? Or that the hobo would somehow magically not die from being stabbed by it? Just because something is digital does not mean it should be protected as such. The governments of the world should put a stop to this fucking nonsense before it gets totally out of hand. I *PAID* for my right to stab a hobo, and by christ that's what i'm going to get.

Until I can pay to download content that is DRM free, i'll continue to do what i've done for years now - download off of p2p, and if i like the album, i'll buy the vinyl direct from the artist.

Touchstone for DRM

[Ezelhaar]

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.

Re:Copyright Law Forbids This

[Exousia]

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.