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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.
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.
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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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.
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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