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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.'"
The same reasoning could be used... "I wasn't selling him cocaine illegally. I was filling his prescription for cocaine. No, I didn't check to see if he had one. I made it clear that if he didn't have a prescription, he shouldn't buy the cocaine from me."
Think the cocaine argument would fly in court? Then why would the fair use argument these pirates are trying stand up? It just doesn't hold water for me.
- Greg
Start a happiness pandemic
'I don't see how it's different than selling a used CD,'
iPod and used CDs to become next fair-use battleground
selling a modded xbox with 60gig of pirate software.....
different opinions i guess...
I could put a used CD of the Bay City Rollers on eBay with a starting bid of $19,000,000. It doesn't mean anybody's buying it.
Show me evidence of lots of iPods actually being sold for far above retail value because of the songs loaded in them, and maybe I'll agree there's an issue to discuss here.
Information wants to be anthropomorphized.
It's not your property. You have a license to use it. It's the property of the copyright holder, usually not the artist.
There exists no way of exchanging information without making judgments. --Bene Gesserit Axiom
Does anyone notice that, in about ten years or so, when almost all our music is digital, the used music market will start to drop off? Eventually, as long as we don't create another audio-featuring medium, no one will be able to buy any used music from anyone.
When you sell your cd case + cds, you're transferring the physical cd's, unlike the iPod case where you're transferring mere copies of the songs on said cds.
"I'd rather be a lightning rod than a seismometer." -Ken Kesey
Quite simply, selling a backup of any medium on eBay is strictly prohibited. A good example of where this enforced, is when a vinyl is sold with a CD-R copy of the record.
Given the fact that you can't buy movies on iTunes yet, this is a no-brainer. Even if the iPod were sold with original copies of the CD, it's still a breach, and as such can't be sold.
The real interesting point here is whether or not eBay is open to the sale of "used" MP3s, and how in fact the ownership of these items can be transferred if at all.
Currently MP3/AVI/MP4 are all considered to be backup mediums, and as such are removed for Unauthorised Copies.
According to TFA, that wasn't the situation. The seller was stating that if you didn't own any particular song or video on other media, you were obligated by copyright law to delete it from the iPod.
Spammers use this kind of shady legal reasoning to sell pirated software: They're not selling you the software. They're selling you the service of creating a back-up on CD/DVD. If you don't already own the software, you shouldn't buy it. It's not their fault if people who don't already own the software are buying these $60-$80 backup CDs and illegally installing the software.
It's a bunch of hogwash, IMO. And whether they're getting ill-gotten gains by slapping copies of software on CDs and selling them via spam or they're slapping pirated music and video on iPods and selling them via Ebay, it's still crap. If the case you cited (seller deleted/destroyed any other copies he had of the music/video he was selling) was what was happening, that would be one thing, but most of these sellers are not that honest.
Start a happiness pandemic
last year, when considering the sale of my 15GB ipod, i thought about leaving my 2000+ songs on there and addign that as a selling point. with what little common sense i DO have, i figured it would be illegal and i didnt want to get sued.
/.er, but i try to fly "under the radar" with my offenses.
it is obvious that you are not allowed to sell the songs. with all the stuff we see EVERY day about people being sued, how could you think that selling an ipod full of music wont get you in trouble? i hate the RIAA as much as the next
OK, this is just wrong, as it goes against playground rules; if the record company's aren't making money, why should you? Charging $$hundreds for just copying some stuff, come on, you just charge for the media and swap..
And remember kids! Selling iPods full of music is illegal! (Well maybe not if they're all downloads from itunes, but ripped from CD sure thing). So make sure you sell your iPod with all files deleted from it!
And sell the undelete program in a separate auction. Which is linked from the cleansed iPod auction.
SCO employee? Check out the bounty
If I put the songs onto a CD-RW, and sold it as a CD, I'm sure that would be coopyright infringement, even if the person already owned the songs. Are these people doing something different because the medium also has the ability to play the music? Or is there another reason this is different?
Copyright gives you the exclusive right to make copies. It does not give you ownership of all said copies. If a consumer buys a CD, the consumer owns that copy of the music. And if the consumer has Fair Use rights to make a copy, then the consumer owns that copy as well.
IANAL, but...
Now, just like with laptops that come loaded with $10,000 worth of software "for demo purposes only, if you don't own the license, you must remove it upon receipt," this is copyright violation, and, by definition, piracy.
The iPod sold for $152 more than an equivalent 'blank' iPod. Therefore, someone was willing to pay a premium for the added content. Therefore, the seller made money off of the content that they put on the iPod, in violation of the copyright holder's rights. That meets the FBI's definition of piracy.
Now, if the seller instead says "GIve me a list of your TV shows/movies/music, and I'll pre-load your iPod with that for you," it's a lot more gray. That is at least nominally only including content for which the recipeint has the legal rights to use. But selling it with stuff preloaded, and saying "you must remove..." is shipping it with infringing material, then telling the recipient to do something active to become legal.
I'm not one who believes 'IP theft' is anywhere near the same as physical property theft; but this is roughly the analog of selling someone a car with a stolen stereo in it, and saying "Upon receipt of this car, you must turn the stereo in to the proper authorities." You're still selling stolen merchandise. (I think this is the first time I've found an 'IP theft vs. propterty theft' analogy appropriate!)
I have no problem with people who want to commit 'civil disobedience' by breaking copyright for personal use. But the moment you have monetary gain, it's no longer okay. That's not 'fair use' any more.
If you include the source material (CDs, DVDs, or Apple account media was purchased with from the iTunes Music Store,) then I would consider it 100% legal.
Another non-functioning site was "uncertainty.microsoft.com."
The purpose of that site was not known.
I'll bet the RIAA would surely claim fair use if they bought iPods, filled them with songs and then distributed them to their own employees.
IF we are buying the license, then we should have the ability to sell the license to someone else.
This will certainly be taken to court. Look, if you purchase a car, and your car company expects you to pay insurance to protect your car, but suddenly the state tries to claim that they actually own your car and that you only can purchase a license to drive it, and to top it off you don't even own the license, I'm sorry but thats just robbery.
If you pay for a license but don't gain any rights, if you buy an ipod and purchase the music, but somehow you don't have the right to resell the music, then what are you purchasing?
When the time comes where we have to buy licenses to breathe air and drink water, and some company comes along and strips you of your license, well I guess you'll just die.
It's one thing to allow the traditional recording industries to exist, by buying their music on ipod, but its another to give them the right to strip you of ownership, if you are basically providing welfare for these record companies, then if they were wise they'd actually be sitting down at the table to make a deal with Apple, and with consumers.
If they refuse to sit at the table, then Apple and consumers will eventually replace them with companies who do respect the right to sell Ipods on Ebay. To be frank, they are over-reaching here, and its hurting them over and over again. You cannot maintain a monopoly by force. Google is smart enough to know that the best way to maintain their monopoly is by actually putting the consumer first. The artists know this too, they make music that their fans want because they have to sell both CDs and concert tickets.
Look, here are our options, either we can have a fake corporatized art and music industry, where corporate bosses tell artists what music to make, and then tell consumers what music to buy, and then force both the artist and consumer to be caught in a loop similar to Microsofts tactics, or we the artists, consumers, CEOs, programmers and lawyers can get together and decide to offer an alternative.
Ipod, Itunes, Google, Open Source, GPL, GNU, Creative Commons, these are some of the alternatives. If the traditional industries were smart, they'd simply adapt to the market instead of trying to control it. The market ultimately cannot be controlled, and the more control you try to put on the market, the bigger you make the market for any competition which decides to offer freedom as a product. So it's simply, the recording industry is helping to fund new freedom industries and freedom based products.
we don't care. we just want to listen to music. and we will continue to do things exactly like this eBay case for all time.
why?
because you shouldn't have to be a lawyer in life to just be able to listen to some music. all of these "vile evil illegal" things us consumers are doing with music have nothing to do with anything except the march of technological progress. the only people who should change are the music cartels. the consumers should do whatever they want, the artists should do whatever they want.
what technology has done is made consumers suddenly able to do things only cartels could do before. in the pre-internet environment, with only a few cartels around, it was easy to enforce the arbitrary rules that made the music business profitable for them.
notice that these arbitrary rules have nothing to do with morality or right and wrong, they only have to do with a profitable business model from a bygone era. what consumers are doing now with music files renders that business model obsolete, as there is no way to enforce these arbitrary rules anymore, since it's not just a few big cartels who have these powers. really, i think the us government and the legal system have more important things to worry about than if an 8 year old downloaded flipsyde from a friend. as if that is even inherently wrong in any valid moral context. it's only wrong in the context of killing some rich company's business model.
the cartel's attempts to make their pain our pain because technological progress is rendering their business model obsolete is not a valid position to prosecute any consumers. period. nothing will stem this tide. nothing the cartels can do will change the new landscape. pandora's box has been opened. you can't put what has been let out back in the box.
the only future for us as consumers and artists is the chinese model: piracy is rampant and unstoppable, and accepted. artists simply make money off of endorsements and live shows. that means they won't make jay z or fifty cent money, but music will be made nonetheless, and artists will still be financially quite comfortable, because artists make music for the sake of music first, not for the sake of making money.
it's not like someone suddenly announced that wall street traders will make a tenth of what they used to make, and so no one wants to be a wall street trader anymore. people make music because they love music. period. that's been true ever since we were just banging on drums around a campfire, and will always be true, no matter what the economic future of the music world holds. and besides, it's a way for teenage guys to get chicks. do you honestly need anymore incentive than that?
music, in quality and quantity, will not change in the least. you could even make the argument that music would get better in quality and quantity, without an artificial financially driven entity sitting between consumer and artist.
and music distributors?
they will die.
and i really don't see what the problem is with that. all we are witnessing is their painful death throes now, and their attempts to drag us down with them. fuck them.
but there will always be a niche for someone to "get out the word", for an influential company to promote struggling new artists. the last dying vestige of the old music cartel's corpse will morph into this new entity. old school disributor --> new media promoter
intellectual property law is philosophically incoherent. it is your moral duty to ignore it or sabotage it
"Steve Brinn, a Cincinnati pediatrician"
Maybe we can solicit opinions from people who actually have some knowledge on the subject. I mean, they might as well just have asked my garbage man, or a egronomist, or a CEO. Sure, the guy is a doctor, but his degree ain't in law.
-Rick
"Most people in the U.S. wouldn't know they live in a tyrannical state if it walked up and grabbed their junk." - MyFirs
Actually, the only part that actually is property is the hardware. Copyright law does not confer property rights over songs. The only property in copyright is the copyright itself. Songs, by their very nature, cannot be owned. What they have, what they posess, is the exclusive right to copy the song. Property must have a specific physical instance in order to satisfy the definition. Where do they keep the British Crown Jewels? Tower of London. Crown Jewels are obviously property. Where do they keep the song "Helter Skelter" by the Beatles? Well, there is no one pllace. It shows up a bunch of places, not least of which is in people's heads.
Despite the unfortunate popularization of the oxymoronic term "intellectual property", you cannot own a song. You can only hold its copyright.
Conclusion: the Empire squashes the Federation like a bug. Accept it.
I don't understand why this post has to be about the iPod. This is true of all kinds of items sold on eBay, including everything from other types of mp3 players and media players to "external" enclosure hard drives and even whole computer systems (where the issue extends from multimedia content to installed commerical software applications for which the original media is not included because the seller intends to keep the license).
This isn't new, and it isn't about the iPod either. It's a much larger issue. Just go ahead and search eBay right now for devices with music and movies on them.
It's not your property. You have a license to use it. It's the property of the copyright holder, usually not the artist.
So far as I have seen, no DVD movies or musical CD's I've ever purchaced have presented me with any end user licensing agreement. Therefore the DVD, CD, etc is my property, and I should be able to make copies for my personal use according to the "Fair Use" clause. If I use those copies in my iPod, computer, DVD Player, etc there should be no legal issue. As the CD, DVD, etc is itself my property I CAN resell it. I cannot sell copies however, as I'm not the copyright holder. If I choose to resell the DVD, and also happen to bundle the DVD with the iPod, and the IPod has a copy there should be no legal issue either. It's only when I'm selling the iPod with the movie on it is sold on it's own, and I'm keeping my copies or originals of the media in question that it becomes a valid concern for copyright law. The only noteable exception to this is digital purchases (via iTunes etc) where there may actually be an end user licensing agreement that you must commit to before being allowed to use the service.
Ah, so close.
Yes, copies are property, and copyrights are property, and works are not. But no, you there's nothing odd about the idea of intangible property. Copyrights are intangible, for example.
Basically, something is property if you can 1) use it, 2) lend to and recover from others, and 3) dispose of it by selling it, destroying it, etc. Just because something is intangible doesn't mean you can't do this. But a creative work can't be recovered, conveyed, destroyed (usually), etc. People can't lose knowledge like they can lose a sock; they can only share it or not.
-- This and all my posts are in the public domain. I am a lawyer. I am not your lawyer, and this is not legal advice.
Want to fix DRM? Vote it out of office.
I agree, but it doesn't seem to work that way. In my district I generally get a choice between a conservative moron and a liberal moron. The only thing most of them do is spout off buzzwords. I wouldn't trust them to understand the problems with DRM and the RIAA even if they mentioned the words during a campaign. On top of that, most of the people around here will vote for the incumbent, and lacking that for a choice will vote for whoever has held an office before.
"She's experienced! She was on the school board, we better vote her into congress."
With our system of a representative republic, and our current state of two dominant parties, it's difficult for most individuals to find a choice that even remotely represents our opinions. Much easier for individuals to ignore the law, download anything they want and hope the courts resolve it.
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The fact is, musicians have always been compensated throughout history. Whether a quartet commissioned by a duke, a troubadour paid by a bartender, a busker on the street, or a drummer getting tossed some tablescraps from the guy who owns the campfire, musicians have been in demand and have been commissioned for hire. The difference was, in the time before recordings, live music was your only option, and generally only the wealthy could afford to pay for music on demand. Recorded music brought music on demand affordably to everyone, and moreover, allowed the musician to effectively get paid for many more "performances" than he could physically do in person. Now, because of "piracy" (or whatever you want to call it) that revenue stream is, as you correctly state, gone.
this is 100% accurate. but those words support my assertions not yours. before recorded media, musicians did fine. they were rich and were famous and were well respected. what the age of recorded media did to music was make them superrich and superfamous. and yes, indeed, that era is now dying. like i said, do you need fifty cent or jay z money to make music? if i say by becoming a musician you could be world famous and earn millions, has music been destroyed because it's not true any more that you could be world famous and earn billions?
live concerts, endorsements are now your revenue stream as a musician. and what is wrong with that? do you honestly believe your own words that all musicians will be hoppyists?! like any creative field, music is full of starving artists. this was true in the year 1700, in the year 1950, and will be true in the year 2100. do you honestly believe that starving musicians didn't exist in the era of recorded media, 1890-1999? but, just like in 1700, in the year 2100, when music conglomerates are long dead, there will still be very rich, very successful musicians... and starving musicians. nothing has changed
you can't use your argument that by returning to how things worked in the 1700s that music will be destroyed. because you yourself have outlined how in the 1700s music worked!
and finally, i will assert to you that any musician who would complain about the death of music conglomerates that music will drop in quality and quantity is not a real musician. a real musician makes music TO MAKE MUSIC, not to make money. so, in fact, getting some of the money out of the system will INCREASE the quality and quantity of music. because all the phonies will leave
we are human beings. we love music. we love listening to it, we love creating it. MONEY DOESN'T EXIST ANYWHERE IN THAT EQUATION, and additionally, there will still be enough money in the equation anyways
you yourself said so, by showing how it worked in the 1700s
you're arguing against yourself
intellectual property law is philosophically incoherent. it is your moral duty to ignore it or sabotage it
(This applies in the US. It may apply elsewhere. I have no idea.)
You own the copy. Sure. Do what you want with it - but don't distribute it, because that right is explicitly reserved for the copyright holder. That part of copyright law is not nebulous in any way.
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