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Testing The Right To Resell Downloaded Music
Posted by
timothy
on Wed Sep 03, 2003 02:54 PM
from the no-eula-no-stop dept.
from the no-eula-no-stop dept.
David Gerard writes "A man has bought a song from Apple iTunes and has put it up for sale on eBay. "I only spent $0.99 on it but I bought the song just as legally as I would a CD, so I should be able to sell it used just as legally, right?" Does the Right of First Sale still exist?" The seller says he's seeking attention, but not to himself. Rather, he calls this "an experiment in property rights in the digital age," and promises not to keep a copy once the sale is done.
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Testing The Right To Resell Downloaded Music
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Article text (already slow to subscribers) (Score:5, Informative)
(Last Journal: Sunday April 11 2004, @07:41PM)
I just posted an eBay auction [ebay.com] for a song I bought from the iTunes music store [applemusic.com]. It should be interesting to see how this works out. I only spent $0.99 on it but I bought the song just as legally as I would a CD, so I should be able to sell it used just as legally right?
[Update 09-03-2003 10:08 AM] Right now I've come up with a couple ways that the transfer of ownership could take place. One is to call up Apple and ask them to do it for me, which would be an interesting call. The other way would be to give my account to the winning bidder, which doesn't seem like a bid deal considering that I've only purchased one song. Still, I'd have to make sure that my credit card info was completely disassociated with the account. Or I could just create a new account and repurchase the song on that account.
[Update 09-03-2003 11:25 AM] I'd like to respond to a few points made by people: 1. It's true that I'm seeking attention, but not for me personally. This is an experiment in property rights in the digital age, something that's gotten surprisingly little attention. 2. I've read the iTunes agreements and found nothing denying transferability. This isn't any more a commercial venture than selling CDs at the local music store, I'm not incorporated or even DBA. Furthermore, in case anyone thinks this is a cheap way to make a buck I will be donating all proceeds to the EFF [eff.org]. 3. When the song is successfully transferred, I will not be keeping a copy of the song. If I don't own it I shouldn't have a copy.
[Update 09-03-2003 11:25 AM] A very excellent comment below by Piggly Wiggly asks if I will convert the format for delivery. My answer right now is "no" because I don't want to cloud the issue of the sale by changing the format. Also, I'd like to thank all the people posting supportive comments who realize that this is about more than a $0.99 song being over-valued on eBay.
Huge profit (Score:5, Interesting)
Re:Huge profit (Score:5, Funny)
(http://integramod.tripod.com/)
I wish I had thought of this...
Re:Huge profit (Score:5, Funny)
Donate the proceeds to the EFF? Hah! (Score:5, Insightful)
(http://www.college-paintball.com/)
Re:Article text (already slow to subscribers) (Score:5, Interesting)
(Last Journal: Friday August 22 2003, @03:01PM)
- De-authorize his computer from iTunes (so that the song will have its full, legal ability to be authorized on three machines)
- Copy the file to whatever media he's using for transfer
- Delete the original
- Cancel the credit card used to purchase the song
- Send the song, the Apple ID and password to the buyer
Simple!Re:Article text (already slow to subscribers) (Score:4, Insightful)
Re:Copyright Law Forbids This (Score:4, Informative)
No it doesn't. Do a google search for the term "Right of First Sale". The copyright law and Supreme Court decisions indicate that the copyright holder gives up all rights to control subsequent sales after the first sale. There are also special exemptions for Libraries, etc.
The copyright law prohibits someone from selling reproductions, but Right of First Sale dictates the disposition of the object afterwards.
The question here will be how Right of First Sale applies to a digital recording that was never originally distributed on any kind of media.
This decision might also affect the validity of other digital recording "licenses" like computer software, etc.
Re:Article text (already slow to subscribers) (Score:4, Informative)
Re:Article text (already slow to subscribers) (Score:5, Insightful)
Re:Article text (already slow to subscribers) (Score:4, Insightful)
(http://www.lib.ru/)
Commercial usage would occur if you, for example, play the song in your bar, or broadcast it through your own radio station. None of that applies here.
Re:Article text (already slow to subscribers) (Score:5, Insightful)
Re:What is legally happening here? (Score:5, Informative)
(http://slashdot.org/)
A very good observation. I believe it is illegal (ie, against copyright law) to reproduce a work through any type of copying. This would be similar to photocopying a book, burning the original, and selling the copy to someone. It's the very act of copying the work that is illegal because you were not given the right to reproduce the work. Here's the relevant section of the code [copyright.gov]:
So, since only the original author has the right to reproduce the work it would be illegal to reproduce it. If the iTunes music store specifically gave you the right to reproduce the work then you could make a million copies. However, you would then run into section 3 of the code quoted above, which says that only the owner of the copyright can transfer ownership of a copy of the work.
A very thorough and much more involved look at the First Sale Doctrine can be found at the Duke Law & Technology Review article: "THE FIRST SALE DOCTRINE AND DIGITAL PHONORECORDS" [duke.edu]
Re:What is legally happening here? (Score:5, Informative)
Bull-hockey. The courts have ruled no such thing. In fact, the copyright law specifically allows for this sort of "copying" the data into memory in the case of computer software or other cases where such "copying" is a necessary part of using the copyrighted work.
RTFM [copyright.gov]:
Re:Apple usage policy (Score:5, Informative)
(Last Journal: Wednesday November 16 2005, @09:28AM)
Re:Apple usage policy (Score:4, Insightful)
(http://www.no2id.co.uk/)
Anyone have a copy of the EULA?
Sounds reasonable (Score:5, Interesting)
Re:Sounds reasonable (Score:5, Informative)
Re:Sounds reasonable (Score:5, Informative)
Son of a bitch. (Score:5, Funny)
(http://www.soonersports.com/ | Last Journal: Thursday March 13 2003, @03:39PM)
Slashdot, News for Nerds and eBay listings.
How much will he get for it? (Score:4, Interesting)
(http://somethingstirring.blogspot.com/ | Last Journal: Saturday December 01, @09:19PM)
And, no, I haven't RTFA yet, I'm going to do that now...
Re:How much will he get for it? (Score:4, Funny)
Let's just say that the profit margin seems to be a little bit higher on resold digital music.
Wait till all the venture capitalists find out!
DRM Restriction (Score:5, Interesting)
Re:DRM Restriction (Score:5, Insightful)
(http://www.fahrvergnugen.net/)
She can TRY if she wants, and the clause can be there, but it's an illegal clause and thus is unenforcable, and I can take her to court in this state and get my money back.
There are some rights one cannot sign away, no matter what the TOS might say. The question here really is whether right of first sale is one of them.
Re:DRM Restriction (Score:4, Insightful)
(http://slashdot.org/)
Have you ever heard of the phrase "inalienable rights"? To allow people to give up their rights is just opening up the door for those with power to give folks an offer they can't refuse. Suppose all credit cards came with an indentured servitude clause?
Legal principles like first sale should take precedence over any contract made after the principle is upheld by a court. Since first sale was upheld a long time ago, that would include any contract dealing with digital media.
Every industry would love to get rid of the 2nd-hand market - it depresses prices. Gosh, if music fell under first sale you'd have cooperatives where everybody donates 10 songs to get access to the whole collection - as long as only one copy is checked out at a time it would be legal. Publishers would love to get rid of libraries as well - but that doesn't mean they're illegal.
Re:DRM Restriction (Score:5, Funny)
You mean yours don't ? Damn I'll have to get some new ones.
Re:DRM Restriction (Score:5, Insightful)
MANY rights can not be given up, no matter what you sign.
For example, slavery is illegal no matter what you sign.
Parental rights also are sometimes considered valid, even if you signed them away (as in surrogate parents).
The question is, is it possible to give away your right to sell an object and still be considered the legal owner of it. And that is very much up in the air. The right to sell is considered by many to be inherent to ownership.
Consider a bankruptcy case. Assume someone went was rich and had a huge collection of purchased songs, say 50,000 at $1. each. Would a judge be able to legally order those songs sold for? Or could the rich man say, no I can't sell them according to the TOS.
I think the TOS would be thrown out and the songs sold.
Unless in TOS, and maybe even then, you own it. (Score:4, Insightful)
(http://slashdot.org/)
If you go down to the shop and buy a DVD, you own it. Just as you own your copy of the book you bought. However, the copyright to the movie or the book text is not owned by you. That is the way it always has been since the dawn of copyright.
However, now that data (the text) can be separated from the medium (the book), they are trying push legally dubious ToS or EULAs to fool people into thinking just as you do - that you do not own your own copy.
You own a copy of the data - you have every right to sell that copy, even if it is no longer confined to the pages of a book or the surface of a disc. However, you do *not* have the authority to make copies and sell them. Or to sell the original and keep a copy.
Kjella
Re:DRM Restriction (Score:5, Insightful)
(http://www.thekcguy.com/)
That's the position I'm in with my left kidney and my right eye. It's my understanding that I own them, but here in the US I can't sell either. (especially not on eBay.)
Re:DRM Restriction (Score:5, Funny)
(http://www.warcloud.net/~odinson/ | Last Journal: Wednesday January 14 2004, @11:43AM)
By clicking this you agree to ship us your first born postmarked within 48 hours (business days only). Click here for packing instructions.
Just because it's in a contract doesn't mean it's legal. Much less enforcable, moral, or in a sane alignment to the natural doctrines of the free market and capitalism. It just means another lawyer is off the bread line.
Re:DRM Restriction (Score:5, Insightful)
(http://www.dasmegabyte.org/ | Last Journal: Tuesday June 22 2004, @11:41PM)
Because the file iteself is useless without the iTunes account that set it up. That's how this DRM works. The account is what unlocks the file and makes it play music. And I'm sure that accounts are non-transferrable, except among computers you yourself own -- and you wouldn't want them to be otherwise, since the account is connected with your credit card, and can be used to purchase more songs. That's the real protection, the thing really preventing people from spreading their iTunes files all over the net...the threat of misuse of their account. Shit, I don't even leave my iTunes sessions open anymore, because my wife once bought a bunch of Nick Drake CDs on my account(It's the same credit card, I know...I just don't want anybody thinking I listen to that crap).
So there's an issue here most people aren't seeing. There's a good and a service involved in this sale. The good is the file itself. The service is Apple's unlocking of the DRM.
When I got my house painted, I paid for two things: the paint (a good), and the painter's work (a service). When he was done, i got to keep the leftover paint. I didn't get to keep him, I don't have any control over what he does from now on. I can sell you the extra paint, but if you want to get it on your house you'll have to pay the painter. You can try and convince him that I paid for his unlimited service based on the paint he sold me, but he will probably just laugh at you...even if I promise to scrap all the blue off the house myself, and transfer it to you.
Isn't that what's going on here? The only confusion is over what the consumer's rights are, and what the medium is. Apple gave him a file and promised their services to unlock it an unlimited number of times to play it on his computers. If he gives it to somebody else, that's his own accord. The file is his to give. But the buyer shouldn't expect Apple to do anything for them. After all, they don't have a contract with Apple. Apple doesn't know the buyer from Adam, and if they don't want to perform a service for the buyer, they shouldn't have to.
That's the point of DRM (Score:4, Interesting)
(http://www.rootrecords.org/)
Forget about what should or should not be legal. It's like the law -- how do you know if it's not okay to do something? It's against the law. Can I wear a fish on my head? Sure, it's not against the law. Can I shoot someone? No -- it's illegal.
By the same token: can I copy this file onto 4 computers? No, the DRM won't let you. Can I sell it to someone else? Well, if the DRM lets you, obviously it's okay.
Resell ? (Score:5, Interesting)
(http://aol.com/)
Currently Apple doesn't allow download outside US, so if he is infact legally allowed to sale his bought music, then
Can he sell it outside US, at a higher price and make profit ?
Transfer? (Score:5, Insightful)
(http://www.gamerspre...tasy_XII_Walkthrough)
At the moment, the Apple Store lets you "authorize" music files. So for this person, after the file had been "sold", he would have to deauthorize the up to 3 other computers that had been allowed to play the song, give a copy of the file to the buyer, then provide them with his Apple iTunes Store username/password so they could authorize it on their machine.
As he mentions, he could call up Apple and ask them to switch his authorization of the song to another user.
Either way, it does raise an interesting question, and as someone who has been using the iTunes Music Store, I've never thought about it: Suppose that years from now, I want to sell all my downloaded music files to someone else. Is there a way to transfer the license? What if I left them in a will to my children later on - could Apple be required to ensure that they could use the files later?
Or he's about to run into a massive "legal agreement" which will negate his First Sale ability - we'll just have to see what happens, neh?
Re:Possible? (Score:4, Informative)
(http://http//www.freeiPods.com/?r=14230492)
I don't believe you are correct. His rights are assigned and associated to the iTunes file, not an ill-gotten MP3 he downloaded. Even if you buy a CD, according to copyright laws you are allowed to make one backup copy for archival purposes. That's why the RIAA has a leg to stand on in court. Even if you own the CD's, legal you can not download the MP3 from someone else. You rights are associated to your media, not someone elses media. Now if you rip the songs off of your media, and do not share them, then you are ok. As soon as you share them, or download someone elses, then you have violated copyright law, because the content you are using is not associated to your purchased media.
So if you sell the iTunes file, and then give the person the MP3, not only did he reneg on the iTunes sale (because the rights are associated to the iTunes file, not the MP3 you downloaded), but you just sold a pirated MP3.
Highest Bidders Name (Score:5, Funny)