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Apple Responds To iTunes "First Sale" Question
atallah writes "It looks like Apple has come out and explained its position on resale of songs. It is interesting that they didn't flat-out reject the idea.
Check out this Business Week article."
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Apple comes out looking like they (a) understand copyright restrictions and took that into account already, and (b) still don't want to be the RIAA and crack down on this sort of thing. This is called "design". They made it difficult enough to sell iTunes songs that they don't need to worry about reselling, even if it is legal. That said, someone's going to find a way around it eventually, if current trends hold.
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They keep saying it's impractical to sell the songs...well, how about trading songs with other iTunes users? I'm sure there is some right somewhere where you can give stuff away that you bought a copy of. (Basically sell it for $0). So...the real question is...why can't i just forward my legally purchased songs to Jim Bob the same way i could hand him my physical CD.
Economically, I don't believe there is going to be much of a market for resold music...We just don't see it as that much of an issue
Wrong! Many many people will buy mp3s if its only 10 cents an mp3 and they would not mind a "used copy". Someone reselling can put the price so low if he has rights to the song after he is done listening to it.
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Apple says it's impractical because a song is $.99. However, what happens in a few years when someone has 100 songs that they no longer listen too. Wouldn't it be practical to sell that lot of 100 songs for $50?
So basically Apple has said that it may or may not be legal to resell a song, but it would be technically difficult to do so, and it only cost 99 cents in the first place so why would you want to? Thanks for not answering the question! Maybe I do want to resell a song. Maybe I want to sell my entire iTunes music collection. Maybe I'm clever enough to overcome the technical difficulties. Would it be legal or wouldn't it? And if Apple established that it was, wouldn't I feel better about buying from the iTunes music store?
I think this is the whole point of the argument. It's very much akin to if a subscriber to Everwaste actually owns the character and items aquired by that character in order to sell them on eBay. If it stands up in court, it just measn that a) Apple has to facilitate a free transfer function or b) Apple removes DRM. (Guess which one would happen first.) I guess the could do C) change the TOS to make it apparent that you don't own the damn thing at all, but are paying a rental fee for long-term use.
Deny everything. Apple has put their fingers in their ears and are sitting in the corner singing "la la la I can't hear you". Technically they are probably right, this is not very practical - but the legal validity of such a sale still needs clarifying as it has ramifications for other applications of copyright law to digital (by which the lawyers seem to mean "downloaded"[0]) content.
[0] They don't (yet) seem to claim this legal dilemma would apply if the music was on a CD, only if it's downloaded... This, to me, seems nuts - why does the medium in which you obtained the content make a difference?
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- JRR Tolkien.
Technical issues could be overcome with an addition to the Apple Music Store authorization system that let you give your song to someone else, deauthorizing you in the process. No major technical difficulties there. The real problem comes in verification that you have not made copies for yourself. If you have, then the "re-sale" is simply a fraud. The only way they could do this is have every computer that is authorized on the account report back whenever the song is burnt to a musics CD - it would be worthless as a data file (unless you manually drop it on your iPod...), only allowing you to sell songs you have never duplicated. However, I don't think Apple wants to keep track of everyone's CD burning, and people are just as unlikely to be interested in the prospect.
Of couse, you could get around this by using a program that grabs the audio stream during playback and acheive the same end result.
I understand Apple's position. Even if it isn't the greatest solution, they have stated that they believe in the "first sale" right, even though it isn't practical to implement. Their stance can be noted when the time comes that support for those rights is needed.
That what was all this school was for... to teach us how to solve our own problems. -- janeowit
They seem to be handling this pretty responsibly. Most companies (and people as well) will go on the attack when this sort of thing happens. The MMORPG companies have been particularly mean about this sort of stuff when they probably could have done things in a much more responsible way. I'm really not a fan of Apple, but it's nice to see that somebody keeps doing things right when everyone else seems to be sueing, legislating, lying, bribing, bombing, terrorizing, and so on.
-dbc
This seems to be exactly what the Ebay guy wanted to challenge. Is Apple not violating a buyer's right to sell their property under the First Sale Doctrine if they prevent the user (maybe through the DMCA) from transferring it? I would say they are. Obviously, this challenge could also be applied to alternative forms of legitimate digital media and clearly shows the extent to how much the DMCA tramples consumer rights.
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(40gigs / 5mb a song * $.99 a song) + $500.00 ipod = ~$8,500.00
If it stands up in court, it just measn that a) Apple has to facilitate a free transfer function
Wrong. They will by no means be required to facilitate a free transfer function. Just because you have the right to do something doesn't mean that they have to help you do it---and certainly not for free. That would be like saying that a record company should pay your postage if you sell your CD over eBay.
Having said that, I think it would be great if Apple would provide this facility.
Let's see, you pay 99 cents for the song and now you're going to resell it. Unless it's no longer available why would I pay you more than 99 cents for the song or pay you at all when I can just as easily get it from a trusted source: Apple.
And why would you charge less than 99 cents for it? It's a dollar. Most people aren't so scroogish about their money that they will try to get a dollar back. And most on-line money transfer places don't make it economical to sell something for a buck. The fees are too high. With PayPal you'd only end up with 66 cents on that dollar. And it's quite a hassle to mail you a dollar in which case I'm paying an additional 37 cents at least.
Apple got it right. The technical restrictions and the low cost make it a waste of effort to try to resell to regain the cost of the product, much less make a profit. They quite literally made it impossible to be undersold.
If songs ever stop being offered by Apple then one may have a business opportunity. But that would require buying numerous licenses of each song to make it worth it and require some foresight into what's going "out of print" that people will still want years from now in order to avoid wasting money on songs you'll never be able to sell once the market swings your way to check out what you have.
Instead of fighting Apple in this worthless pursuit of pennies, you'd be better off forming an allience with indie bands and set up a business being the first time sellers of their music. There's a huge market for that.
Ben
Work Safe Porn
We accuse the RIAA, MPAA, and other big special interest groups of not adapting to the internet and clinging to outdated paradigms. Aren't you doing the exact same thing, applying a paradigm that easily applies to physical property but can't be applied (or is technically unfeasible) in the digitial realm?
The article has pretty much highlighted that Apple has a flat head. Nothing more, nothing less. I think it's pretty fair for them to say that "It may be legal (or illegal), but it's pretty darn impractical!" Sure it would be much nicer if there was an easy way to re-sell the music files, and I do believe that it's legal, provided you follow a few common-sense steps such as not retaining a copy after the sale.
A lot of slashdotters are probably gonna complain that Apple needs to create a method for transfering ownership, and all I can say is, no they don't. I have every right to sell my DVD collection to a friend in England. (I live in Japan.) He has every right to go out and buy a DVD player that can play them, or modify his own, since it's a different region DVD. Yeah, it's a pain in the ass and almost evil to have region coding, but that has nothing to do with the copyright of the DVD in question.
The only difference with the DVD and iTunes file is that with DVD's, the "impracticality" was put there on purpose, which in my mind means the organization(s) responsible for the region coding are a bunch of assholes. As for the iTunes file, the copy protection method was put there so that Apple could manage to
1) strike a deal with the labels,
3) deliver what the consumer wants (downloadable legal music), and
2) still manage to maximize consumer rights. (CD-R burning.)
(And yes, 4: profit!, but there's nothing inherently wrong with that.)
I'd say Apple did a damn good job at it, even if it's not perfect. Truth is, the reason it isn't perfect is more or less the record label/RIAA's fault and not Apple's. If you don't like it, don't buy it.
I'm speculating a lot here, but I get this feeling that if you made a CD from the iTunes file, and sold the iTunes file AND the CD together, Apple could care less. Apple is merely providing a SERVICE in exchange for a small percentage of the sales. It may be legal grey zone, but it isn't damaging Apple's sales (as long as you're honest and delete your own copy after sale). Hell, it probably isn't even damaging the RIAA member's that much either, and is within the owner's rights. (And if it's within the owner's right, then it isn't even "damage" any longer.) But for some reason they make a fuss over it.
So what we have here is a very odd scene, really. "Holy shit, a large corporation using common sense! It must be a conspiracy!!" And it just as well may be, except it's a conspiracy that is backfiring on the RIAA and in return making Apple look pretty slick.
C'mon guys/gals, it's just common sense.
Wrong. They will by no means be required to facilitate a free transfer function. Just because you have the right to do something doesn't mean that they have to help you do it---and certainly not for free. That would be like saying that a record company should pay your postage if you sell your CD over eBay.
I think you could do a pretty good case when you show that Apple is refusing to acknowledge a change of ownership in their DRM, and so directly ignore the doctrine of First Sale. If you want the physical analogy, it would be having the right to sell your propery - only it is biometrically locked to you. And you have a company that can modify that lock, only they refuse to do so stating they have no legal obligation to help. Do you think that would be acceptable?
Kjella
Live today, because you never know what tomorrow brings
Setting up a transfer function is a good idea. A lof of the music (CDs) I have were given to me as gifts over the years. How can I buy an album for a friend via the iTMS? I think such a system, whereby I could transfer the ownership of the files, would boost sales as the gift giving market is huge after all.
Also, what happens to my music library when I am dead? How can I leave my music to my loved ones?
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This is the most important thing that has every been said by a company on this issue. It basically admits that the way to fight piracy is to create a market environment where there is little incentive for piracy. And how do we do that kids? By lowering the freaking prices and making the product more accessible to the consumer. Thank you Apple.
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