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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
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?
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.
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.
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
You were saying? Sure not *far above* market value, but still.
Your hair look like poop, Bob! - Wanker.
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?
Actually, it's the other way around. People are selling iPods + music for far below the retail value of the songs loaded in them. If the iPod+music sells for $800 and the device is worth $400, Those 11,800 songs are valued at just over 3 cents a piece. That's a damn sight cheaper than they go for on iTMS.
If someone's making a business out of selling pirated copies of songs at 3 cents a piece, I can see how that would ruffle some RIAA and Apple feathers.
As I said in an earlier post, if someone is selling their only copies of 11,800 legally acquired songs for 3 cents a piece, then that's their business and there's nothing to see here. But that's not the case, is it?
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.
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
Spend five minutes in a Cingular wireless store and you will see what the average person thinks
when they aren't able to transfer previously purchased ringtones or games to their new phones.
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.
Agreed, this is one of the most common cases of DRM woes that Joe Public is just now starting to come to grips with. In a case like this it's especially easy to see how DRM is there for the company's benefit and not yours, and on top of that it's hard to make the case that this is somehow stopping piracy. Now if every user could transfer files between anyone's phones then there might be a piracy issue, but you can't so there isn't. And there's nothing stopping a cellular provider from having a proprietary application in the store that would give them and only them the ability to transfer your legally purchased ringtones/wallpapers/what-have-you from your old phone to your new one. This is how they handle number portability (store-access-only app to perform task), there's really no reason they can't do the same with phone files. It's telling then that they DON'T offer this service. The argument can be made that they simply haven't caught up to their own technological demands yet, i.e. it's a new problem for them and they will fix it soon, but I'm willing to bet that this won't be the case.
We will continue to see more and more instances of companies using DRM to force the consumer to repurchase the same products over and over again, it's a huge cash cow for them and your average user just doesn't know any better. All it takes is a slight change in format from one release of a phone to the next and voila! Everything old is new again, as in you automagically don't own any of those songs you "bought". Well, you still have them, just don't expect to ever use them on another device, and good luck if your current device dies.
I think one of the fair-use rights that needs to be examined and codified in detail when all this comes up in the courts, as it surely will soon, is some legal definition for media transactions. Are you licensing the media? Getting a license only for that specific device/format? Are you purchasing it outright without distribution rights? This needs to be strictly defined and mandated across the board. Right now the terms of the sale are completely to the corporations' advantage because they switch between the above options depending on what you are buying and from whom, and it's never very clear anyway. How many people would actually continue to purchase digital media if there were large clear labels on their purchase that told them 'This media can only be used on the device for which it was purchased and may never be copied, backed up, transferred to another device, or format, ever.'? As it stands right now people think 'hey I paid money for it, I own it.' and expect the rights that come along with physcially owning something. they are in fact receiving something very different. Personally I feel it's a bait-and-switch by the companies; including a 50 line legalease licensing agreement in 4 pt text at the end of a 12 page user contract (or shrinkwrap EULA) is full disclosure in name only.
-- I'm not a pessimist, I'm a realist. It's not my fault that life sucks so much. --
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.