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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.'"
I think there's a critical distinction to make before you can decide if it's legal or not:
Is this someone selling many of these iPods, making many copies of digital songs when they don't have permission to? That would seem pretty clear-cut illegal.
Or
Is this someone selling their iPod and the only copy they have of the songs, which they acquired legally. How can that possible be illegal?
In the case of the article, it's clearly someone running a business with pirated music. But, if I wanted to sell my loaded iPod and don't have copies of the music elsewhere, is there really a law on the books that stops me?
I also think the question at the end of the article is apropos: If you own a DVD, can you legally put the movie on your iPod at all given DMCA restrictions?
This really isn't a fair use issue at all. If he were charging to pick up someone's CD collection, transcode them, and load them up onto an iPod, it would be an issue of fair use. If he were doing that except instead of loading each CD individually, he was taking them from a pre-transcoded library, it would be an issue of fair use (though perhaps more shaky, considering past rulings). But this is just plain old copyright infringement, and for profit, no less.
Technically, the "EULA" could prohibit transfer of the assets (not sure if iTunes Music Store does this), but you're basically correct. And if a EULA did prohibit transfer, I would argue against that under fair use limitations of copyright - the same reason you're allowed to sell used CDs (as long as you don't retain a copy of the licensed materials).
There exists no way of exchanging information without making judgments. --Bene Gesserit Axiom
I don't know if they're getting far above retail value, but it's definitely a selling point. When I had a 2nd Gen up on eBay, I got lots of prospective buyer questions: "Does it have music on it? Does it come with music?" When I replied "No, the HD will be reset before I ship it", I never heard from those buyers again. When I checked the eBay listings, other iPods with music were selling for more than I got for mine.
"The question that needs to be asked is, if you buy a DVD, are you allowed to put it onto an iPod?" Onigman says.
This is somewhat off-topic, but this is the best example to show your friends, family, and senators why the DMCA is bad. Here we have a perfect example of something we should be legally allowed to do with traditionaly copyright law (space-shift), it's certainly technically feasible, and there is demand. But we can't actually legally do it, because of the DMCA.
Back on-topic, selling iPods preloaded with media is most likely illegal, unless you include the original media in the sale. (Just like selling any other type of copy of media is illegal).
I agree as long as you sell the only copy of the song and do not keep a copy for yourself. I do not see spending $15 to download 15 songs from iTunes Music Store as being any different than spending $15 to buy a physical CD. I have just as many rights to sell resell my only copy of the digital form as I do to sell my only copy of the physical copy. The RIAA has no room to bitch. It costs them many times less to produce a single AAC or MP3 than it does to produce hundreds of thousands of copies of the physical media, jewel case, and album art. No room to bitch at all.
I agree, but there's no way to actually "transfer" ownership of the files. Using iTMS for an example, unless the seller turns over the ID and password for their iTMS account, the buyer is left without the ability to validate a computer to play those files, so I don't think they could ever be transferred off of the iPod. Hopefully the buyer is aware of the limitations.
Unfortunately, I think what's going on on ebay is essentially selling the same music multiple times while still retaining the original. IOW making a profit off of illegal copying.
As a potentional consumer, this sort of preloaded iPod deal seems to be of limited value.
Not only will an iPod *not* allow you upload songs onto your computer, for storage, but if you want to actually add any more songs at all, you'd have to reformat the iPod to accomodate the new iTunes account, taking all those songs with it. So, why would I want an iPod with someone else's music collection on it?
The idea does raise a geniunely evil possibility though. I'm no fan of DRM, but I can see why musicco's are worried. If I collect tens of thousands of MP3s from eMusic, etc., and came into a financial pinch where I needed money quickly, what would stop me (besides the FBI) from selling a collection of DVDs ("Great Pop Music Through the Decades. All Artists Included!") for like $1,000 or $10,000 each? AS few discretly handled deals and I could be sitting pretty.
joab
I'm kind of surprised that ebay doesn't pull those auctions and tell the seller to cut this crap out. I see this all the time with computers on ebay and I think the same thing. Some dipshit is selling his Powerbook with every piece of software that was ever written for OSX on it (licenses and media not included of course) and he thinks this is going to justify his starting bid of $1700?
The obligatory "You must delete all of this as soon as you get the laptop if you don't own every piece of software ever written for OSX" line is a hoot too.
This is wrong. There's no justification for it. If I were calling the shots on ebay this would get your auction shut down. A second offense would get your account shut down.
Appended to the end of comments you post. 120 chars.
The real issue that has never been resolved is what constitutes proof of ownership of music. I know of no court precedent or legal definition of what I must do to prove I own the music I have, if I'm asked to. (Original media? Original cash register receipts? Does anyone save their music receipts and keep them forever?) Producing the original CDs is one thing, but what about (1) I bought and paid for several CDs of which I made a compilation, but lost the originals a while back in a move or something. I still have my mp3s and CD-R. I legally bought the music, but how do I prove it? (2) I digitized a song or two from old LPs/cassettes, but don't want to lug those obsolete media around with me the rest of my life (I don't even have a cassette player anymore and threw out 90% of my cassettes) just to prove I own them. (3) I copy my MP3 collection to a computer at work ... etc etc etc ... record companies want you to license the music on either the fast food (pay every time you consume a song) or cable TV (pay for the service even when you're not using it) model. I don't like either one better than CDs. If someone pre-loads an IPOD with stuff and sells it (example: https://ecom.ligonier.org/ecom/product.asp?idProdu ct=IPO11Z), what is the legal status of the files? If someone loads someone else's MP3s, that's clearly illegal dissimination of copyrighted material. But, I've heard even ripping a CD and making MP3s is illegal or a gray area. So who committed the crime? At some point, someone is going to rule on this, and I imagine the outcome will not be good. Prohibition days again? Speakeasies where you load your IPOD? Boot screens for MP3 players that list only the public-domain King James Bible audio, with a secret key to pull up the real music? Will a judge be enlightened enough to think better of making something that (a) everyone does and (b) there is no realistic way to enforce or stop the illegal behavior? We'll see...
...if he can actually prove that he owns the music on the iPod.
... If not, they must delete them as soon as they receive it in the mail." The item sold for $551 on Monday.
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 example we get in the article summary has a few conditions to consider. IF the seller actually owned all that music, and has proof of ownership (i.e. receipts), then transfer of sale is perfectly legal, especially since it's sold on a medium (the iPod). (Parallel example: I can order a custom-track CD from a music publisher online, get the CD, then sell the CD later.)
But come on... eleven thousand, eight hundred songs? He would have had to shell out $11,800 for all that music! There's no way that he'd part with it then for $800. In a case like this, it almost seems like the seller is deliberately inflating the value of the merchandise, without himself legally owning any of that music. That's piracy.
Reading the article, we get something even more dubiouly legal, a "condition of sale":
In the listing, the seller says the buyer [of a "brand new" 60-giabyte video iPod loaded with 10,000 songs plus more than 50 movies and TV shows] "must already own all of the music and DVDs.
Oh my goodness, where do I even begin? So I can sell someone a gun, say, and then tell them, "If you've ever been convicted of a violent crime, then you must never use this gun," and then I'm off the hook? Sorry, it doesn't work that way. The seller has certain responsibilites that they must abide by for a legal sale. For guns, it's doing a background check. For iPods, it's owning the music that comes on the iPod.
If you own this music, you either a) transfer the music to a computer and delete it from the iPod, then sell the iPod, or b) sell the music with the iPod, including the proof of ownership. Anything else, and you're seriously in danger of getting the RIAA on your ass.
While it's definately illegal, it seems that it wouldn't be a huge amount different than listening to the radio. There are only so many things you can play, and can't change them too easily (with the radio, I suppose you could always drive down to the station and drop off a CD...)
How are sites slashdotted when nobody reads TFAs?
I don't actually have a law degree on this particular subject (and I don't play a lawyer/expert on T.V.).
However, IMHO, selling MP3 players with the added feature of loads of tunes/movies as a means of upping the price for the product seems as though it isn't really a legal application of the music user's rights.
In addition, is selling an MP3 player loaded with music is perhaps identical to selling hard drives, generic video tapes, audio tapes, CD-Rs and DVD-Rs with music/movies already on them? Why would selling a loaded MP3 player (much like a storage device) be any different than selling storage devices loaded with music/videos?
I'm not sure that this is the same thing exactly as transferring one's RTU of software. In theory, one can sell one's software (if the EULA allows it), provided that no copies will be retained by the seller, and that all materials, copies, and license are transferred to the purchaser. Are we saying that if we sell an MP3 player loaded up with goodies, that we will then delete all other copies of soft-copy-purchased media? Do we also give the purchaser all hard-copies (perhaps original CDs, tapes, etc.) of the media?
Whether or not one likes (the RIAA/MPAA, intellectual property, patents, or other creation protections/protectors), isn't selling MP3 players loaded with content effectively giving away "copies?"
Like I said, I don't have a law degree with this... just expressing opinions...
A Passionate Independent Musician
What if the songs were all purchased on iTunes, then there would be no hard copy, and iTunes does not offer the original purchaser to re-download the file, so I would assume that the original drm protected aac files would be absolutly valid and legal to transfer from one owner to another.
Selling an ipod full of illegally downloaded music though is another story, if you are selling songs you bought it should be ok, if you are selling songs you downloaded then it isnt.