iPod May Become Next Fair-Use Battleground 334
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.'"
could be legal (Score:5, Informative)
Re:If somebody just asked me... (Score:2, Informative)
Re:Bullshit, Bullshit, and more Bullshit (Score:1, Informative)
Re:Bullshit, Bullshit, and more Bullshit (Score:3, Informative)
It is going to get to the point where I can not let a friend barrow a CD that I paid for even if I don't want to listen to it.
So when will congress start investigating drug dealing and sex with minors in the Music industry?
Re:Meaningless (Score:5, Informative)
You were saying? Sure not *far above* market value, but still.
Re:Meaningless (Score:1, Informative)
Two. [ebay.com]
Three. [ebay.com]
Now, I'm not sure that satisfies all of your qualifiers, but regardless of how many are sold and/or how much they sell for, the legality of the sales still remains in question.
So, what am I buying? (Score:1, Informative)
If this is a scam, why bother with an iPod? Get a CHEAP MP3 player, and "sell" that.
Re:Modify the article title... (Score:2, Informative)
Re:Well outlaw Blockbuster (Score:1, Informative)
Re:Modify the article title... (Score:2, Informative)
http://www.planetgarth.com/gbnews/garth049.shtml [planetgarth.com]
http://www.signonsandiego.com/news/business/20020
Re:Modify the article title... (Score:3, Informative)
Re:Well outlaw Blockbuster (Score:5, Informative)
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.
Re:distinction... (Score:3, Informative)
Depends on the specifics. Without knowing more, I'd say that it sounds like a negligence suit, which among other things only works if you acted unreasonably. Relying on expert advice, even if it's wrong, is likely reasonable, so you would be okay.
This isn't the case in copyright, where even reasonable acts, if otherwise infringing, are just as bad as the most intentional acts of infringement. Amount of liability might vary, but the fact of liability would not.
However, and I am way out of my league here, how many situations of a person transcoding their own stuff becomes a civil issue?
Two reasons. First, plaintiffs have limited resources, so they prioritize. Let's say there is one P2P software developer. 100 people use their software and the network thereof. 10 of them distribute a lot of stuff, and 90 of them are leeches that download but never share files with others.
A plaintiff should first sue the software developer. They probably have the most money, and a rule of litigation is to go after the deep pocket. Also, if they're shut down (or at least enjoined) then that could cause the network to shut down. If that happens, while it's possible that the users might use a different network, maybe a few aren't skilled enough to right away, and that's something at least.
Then sue the 10 distributing users. If no one is left on the network (assuming it survived) but the 90 leeches, then no files will get shared.
Then sue the 90 downloaders. However, taking out one downloader only takes him out. It doesn't take out anyone downstream of him (as was the case with the 10 distributing users) or the overall network (as was the case with the developer) and he probably doesn't have much money (as was the case with the developer).
Thus, the most efficient thing to do is to go after the head of the snake, and work your way down. It might be that it's never really practical to go after downloaders (much) but that doesn't mean that you can't if you want to.
The second reason is visibility. It's easy to find the P2P software developer. If you go onto the P2P network and look up IP's, it's easy to find the distributing users. But it's a bit more of a pain to find the downloading users, depending on how the network functions.
In the case of people who space shift within their homes, and never share with anyone, how the hell will you ever find them or even be aware that they exist, save as a sort of generality? They need to put their heads up before you can chop them off.
Re:Bullshit, Bullshit, and more Bullshit (Score:2, Informative)
As far as I can see, the only thing you can do is sell your whole iTMS collection, as there is no way of separating the song from the iTMS account (at least not without stripping it of it's DRM). To me that's the biggest argument against the whole 'Apple are great, 99c a song is perfect because the record companies just want to screw us for more' thing - there's no possibility of a second hand market, no possibility of selling something you bought but no longer listen to, which is one way a lot of people recouped the money they spent on music.
I'm sure Apple COULD add such a facility (ability to transfer a tune from one iTMS account to another, at a price agreed by the two sellers) but somehow I don't see it happening. Not while RIAA and related organisations are talking about tackling the sale of second hand CDs.
I mean soon you'll only be able to buy or sell things if you're marked with the number of the beast.
ITMS ToS v. First-sale doctrine (Score:3, Informative)
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 [wikipedia.org]. 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 [reference.com], then the Copyright Act expressly allows the resale of your copy.
Re:Well outlaw Blockbuster (Score:3, Informative)
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.
Little confused (Score:2, Informative)
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).
Re:Well outlaw Blockbuster (Score:3, Informative)
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.