iPod May Become Next Fair-Use Battleground

jaredmauch writes "USA Today is reporting on a trend of selling iPods on eBay which are preloaded with music and movies. This raises interesting questions about the legality of the files, including those that offer seemingly legitimate services of transcoding DVDs for the iPod video (while selling you the DVD disc as well)." An example from the article: "A 60-gigabyte video iPod loaded with 11,800 songs, with a starting bid of $799. The iPod alone would cost about $400. 'I don't see how it's different than selling a used CD,' seller Steve Brinn, a Cincinnati pediatrician, wrote in an e-mail to USA TODAY. 'If the music industry asked me not to do it, I just wouldn't do it.'"

Comments

could be legal

[stoanhart]

If he had purchased all those songs legally, and eliminated all of his own copies upon selling the iPod, it should be legal.

Re:Meaningless

[OverlordQ]

From TFA:

A "brand new" 60-gigabyte video iPod loaded with 10,000 songs plus more than 50 movies and TV shows, including the three Matrix movies and the first four seasons of 24. In the listing, the seller says the buyer "must already own all of the music and DVDs. ... If not, they must delete them as soon as they receive it in the mail." The item sold for $551 on Monday.

You were saying? Sure not *far above* market value, but still.

Re:Well outlaw Blockbuster

[cpt kangarooski]

That is totally untrue.

First sale permits anyone to rent any DVD. If you go to Best Buy, and buy a DVD off the shelf, you can rent it as much as you like. Indeed, many independent video stores do just this sort of thing.

The reason that rental stores sometimes pay more than the ordinary retail price for a video is to get it early. That is, they want a period where customers can rent a video before they can (effectively) buy it.

This used to be common, back in VHS days. A video would come out and cost a hundred dollars. No one would buy this for home, but stores would buy it to rent. Eventually the price would come down. This is dying out since the industry has changed practices with DVDs. (Studios, retail outlets, and rental outlets don't always get along, you see)

There's no license, though, because copyright doesn't cover a right to rent videos. Check out 17 USC 109, which covers this, if you like.

There is an exception to this, however, for music and computer software other than console games. This came about in the 80's, and was the outcome of lobbying between RIAA, software developers, and rental stores. Libraries have an exception to this, but for-profit rental of CDs is illegal in the US. It's not in some other places, however; Japan has CD rental shops, for example.

ITMS ToS v. First-sale doctrine

[jtcm]

If the TOS expressly limits the secondary market for the songs that are sold through their service, and you break it by selling a loaded iPod, then the RIAA (or Apple) has a claim.

It doesn't matter at all what the license agreement or ToS says. Apple, iTunes, the iPod, the store where you bought the cd, the shrinkwrap license, the damned RIAA...none of them have the right to tell you that you cannot resell a legally purchased piece of their intellectual property.

Why? The First-sale doctrine. The Copyright Act states that the owner of a lawful copy can "sell or otherwise dispose of" the copy. In this context, "otherwise dispose of" means renting, lending, or leasing your copy.

As long as the item you are selling is a legally purchased, original copy, then the Copyright Act expressly allows the resale of your copy.