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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
he will probably be asked not to do it shortly enough
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.
If he had purchased all those songs legally, and eliminated all of his own copies upon selling the iPod, it should be legal.
...for a 25% discount compared to an empty iPod.
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?
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
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.
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.
Does the average person really know every nuance of copyright law? If I had an iPod that I wanted to get rid of, and I were a Joe Six-pack, familiar with eBay, I'd probably just list my iPod for sale, and if it sold, ship the thing, and be damned what was on it. I may not necessarily have the inclination to say "Oh, I need to erase all the crap on this thing first."
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.
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.
"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).
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.
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.
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
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.
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.
-- 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.
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
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.
Find coupons in Greeley
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.
Slashdot - where whining about luck is the new way to make the world you want.
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.
@ASP.NET's parent-teacher meeting: "Little Johnny.NET is very bright, but he doesn't play well with others."
Here:
Try making a corresponding venn diagram, if that helps. It's how copyright basically works after all: some stuff is included, but not other things, and some of the other things turn out to be included after all.
-- 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.
Let me just throw in a hypothetical situation and some one can tell me how it goes down:
Say I buy myself an iPod. We'll be specific and say its a nice 60GB, and we'll even say I got it for around $350.00 (including tax and all that good bullshit). Now let's say I use a legitmate service to fill up my iPod like, iTunes or whatever and I buy a few hundred dollars worth of songs and fill it to capacity. After all cost we'll say I spent over $600 on it.
So I no longer want my iPod but being a nice piece of consumer hardware I can recoup all of my monetary value out of it and sell it on eBay. Since I have already paid for the songs once, there should be no legality issues regarding copyrights? The music was already paid for, assuming "they" (RIAA, whomever you wish to use in this example) want either the seller or buyer to pay, again.
I dunno, it's just silly. I mean tons of other mediums don't have these issues, or at least to the point of being noticible in the press. Look at used computers. Walk into any mom&pop style computer store and you can get old used computers, sometimes with their HDD's unwiped so they not only still have their operating system but a good bit of the files and software still installed. Afaik, no law or lawful action is taken aganist people for selling these things. Or at the least, again, none that has warranted news worthy notice on any site including /. (that I have seen).
Aw Frell this
Video rental stores are a very bad comparison to make.
They purchase the videos you see on the shelves through entirely different distribution channels than you or I do, when we want a video. Along with their physical tape is an agreement that allows them to rent out the video to others, probably in exchange for money -- an amount probably exceeding (over time) the actual value of the cassette if you bought it in the store. In return they don't pay upfront anything like the inflated price that consumers do for the videos -- their price is more like the actual cost of the media. How else would Blockbuster stay in business? There would be probably a million dollars worth of inventory in every one of them, if they were actually paying consumer price.
An equivalent example would be to ask "if the movie theaters can buy a movie and show it to a thousand people, why can't I buy a DVD and copy it for 1,000 friends?" Well, duh, it's because the movie theater is charging money and sending a cut of the money back to the copyright holder, in exchange for an agreement that lets them show it.
Similarly, Netflix gets its DVDs (or so I'm told) essentially for free, but pays a fee to the movie studio every time a copy of a film is rented out. This is why they're not terribly concerned when a disc gets damaged; they don't have to go spend $14.95 to replace it, they just call up the studio and get another stack. (It's when discs that are no longer in production get damaged that it becomes a problem, though.)
At any rate, I'm not sure how this applies to the whole preloaded-iPod thing anyway. What they're doing isn't covered under First Sale doctrine or anything else -- it's legitimate (barely) only because they say the music on there is a "backup" and that by buying it, you're agreeing that you own all the CDs (or digital files) to the same albums. They are claiming that people are paying them as much as a $300 premium to rip CDs that they already own onto a new iPod. Riiight. It's a total "wink, wink, nudge, nudge" scam. It's doing something that would be legal under only a very specific set of circumstances, but generally illegal, and then rather pointedly not bothering to check to see whether those conditions exist.
Scams like this seem, in my experience, to be allowed to slide as long as they're kept small. They tend to get a low enforcement priority, especially when they're basically victimless. I think these guys on eBay are about to find out what happens to the tall blade of grass. Don't expect it to go on for much longer.
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