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Media (Apple) Media Music Your Rights Online

iPod May Become Next Fair-Use Battleground 334

Posted by Zonk from the my-pod-my-rules dept.
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.'"
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iPod May Become Next Fair-Use Battleground More

iPod May Become Next Fair-Use Battleground

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  • Bullshit, Bullshit, and more Bullshit (Score:5, Insightful)

    by gbulmash ( 688770 ) * <semi_famousNO@SPAMyahoo.com> on Tuesday January 24, 2006 @04:33PM (#14551791) Homepage Journal
    The sellers are using the same argument many software spammers use. "We're not selling you the software. You should already own the software. We're just selling you a backup copy... wink, wink."

    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

    • Not really. IF the person bought the songs off of ITunes and deleted the copy on his computer why wouldn't this be legit?
      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?
      • IF the person bought the songs off of ITunes and deleted the copy on his computer why wouldn't this be legit?
        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.

        It depends on what the ITMS TOS states. (Disclaimer: I do not own an mp3 player, nor have I purchased music online) If the TOS expressly limits the secondary market for the songs that are sold through their service, and you break it by selling a loaded iPod, then the RIAA (o

        • If the TOS expressly limits the secondary market for the songs that are sold through their service, and you break it by selling a loaded iPod, then the RIAA (or Apple) has a claim.

          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 Copy

      • Well

        Which congress are you talking about? State congress? which state?

        As far as the music industry goes, if you want to launch an investigation into the music industry, you won't be doing it from congress because the music industry has more lobbyists than the tech industry.

        When Google decides to investigate the music industry, that will be the end of the music industry. It's simple, Google simply has to give up the search information on specific industry execs to the state, federal government, or the media
      • '' Not really. IF the person bought the songs off of ITunes and deleted the copy on his computer why wouldn't this be legit? ''

        Do you believe in the tooth fairy?

      • Re:Bullshit, Bullshit, and more Bullshit (Score:4, Insightful)

        by Anonymous Custard ( 587661 ) on Tuesday January 24, 2006 @06:31PM (#14552908) Homepage Journal
        Unless you have the copyright owner's permission, taking a CD, making copies of the music, and selling those copies is illegal whether you distribute those copies on CDR's, in iPods, or over the internet.

        The only way it'd be legit is if they included the CD with the sale; then it'd be like selling a used CD. You have a right to back up a CD for personal use, but you have no right to then sell copies of that song unless the sale is approved by the copyright holder.

    • Re:Bullshit, Bullshit, and more Bullshit (Score:4, Insightful)

      by Odiumjunkie ( 926074 ) on Tuesday January 24, 2006 @04:42PM (#14551894) Journal
      Your argument only applies in cases of the music being ripped from cd or downloaded illegally (i.e a copy) - that would be a case of the vendor making personal backups, then selling them assuming the customer owns the original cd - but a far more complicated legal area is where the music has been purchased as legal downloads, then put onto the ipod. In that case, it is the original product being resold, unaltered. I would assume that since the customer bought the right to playback the music, they can also sell it - but it would be very hard to establish whether or not the music had been purchased legally, and also whether or not it had been copied.
      • Your argument only applies in cases of the music being ripped from cd or downloaded illegally (i.e a copy) - that would be a case of the vendor making personal backups, then selling them assuming the customer owns the original cd - but a far more complicated legal area is where the music has been purchased as legal downloads, then put onto the ipod.

        I'm not discussing fair use in general. I'm discussing the seller in the article.

        The seller goes by a shady legal theory used by spammers and other pirates... they make a "back up copy" for you. If you don't own the original item, you shouldn't buy or use the "back up".

        Selling iTunes songs you bought and destroying your copies so you're truly transferring ownership of the file... it may well be legal. But these people who sell "pre-loaded" iPods with 11k songs and 30 hours of video for a $300 premium are not people who are within the letter or spirit of "fair use". They are just the same software pirates who spam you all the time about "0Em S0ftwhere" finding another lucrative piracy venue... Ebay.

        - Greg

        • Looks like the videostore industry has to be outlawed. I mean since you arent actually paying for the video when you rent it, they are actually video pirates.

          Look, the video rental industry has something to lose here if the laws are changed. There are industries at stake here, so its a much more serious issue than piracy.
          • 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 f
      • Let me get this straight:

        1. Purchase iPod for $400.00
        2. Purchase 11,800 songs from iTunes for $11,682.00
        3. Sell on eBay for $799.00 ...
        4. Profi...err, wait, loss of $11,283.00

        Pure genius! Where do I send my investment money?

        Economics aside, don't forget that the Fairplay-restricted iTMS music is tied to the machine that the song was purchased on and you'd probably have issues syncing the iPod.
    • Your analogy involving cocaine is inherently flawed. For that to be valid, music itself would have to be illegal. Your first analogy is slightly more correct.

      If one were to own all the media listed, would it be illegal to purchase an ipod preloaded with the content? I cant see that as being illegal. What about users who are too inept/lazy/etc to transcode the content themselves? Should there be no legal recourse for them to get their content onto their devices legally? What about the guy shipping used
    • Not all of them. If you'd (finished) RTFA, you may have gotten to the part at the end that says:

      "Customers of TVMyPod, launched in November, order an iPod plus the CDs, movies and TV shows they want. TVMyPod then buys the disks, loads them on the iPod, and ships the iPod and all the disks to the customer, says TVMyPod co-founder David Onigman.

      Even that raises legal questions, because most DVDs are encrypted to prevent them from being copied. "The question that needs to be asked is, if you buy a DVD, are yo

      • Blockquoth the poster:

        From what I understand, it's only illegal to circumvent copy protection to make illegal copies.

        That's what you'd like to think. And it is certainly what the content cartel wanted everyone to think as the DMCA was moving through Congress. But in fact, the law makes no stipulation that circumvention be only to prevent illegal copies. It makes no allowance for legitimate copies at all. That's why some people call anti-circumvention legislation the super-copyright ... it gives to conte

    • The sellers are using the same argument many software spammers use. "We're not selling you the software. You should already own the software. We're just selling you a backup copy... wink, wink."

      Similar situation around here ... around the fourth you can purchase all sorts of Fireworks all the way up to 6" shells, the fireworks dealers make you sign a paper stating that you are leagally permitted to use the fireworks in the area you will be using them in and that they are not liable for any damages.

      The

    • And I don't even do cocaine. I just like the way it smells.
      (Thanks, I'll be here all week. Tip your waitress.)

      The article is kind of a cop-out, ending the article with, "'The question that needs to be asked is, if you buy a DVD, are you allowed to put it onto an iPod?' Onigman says." Citizens not aware of DMCA regulations may be surprised by the answer. The extent of the article is, "Ooh, there may be some illegal activity here." This graduate of the Barnum & Bailey Clown College for Journalism can't ta

  • Modify the article title... (Score:3, Insightful)

    by op12 ( 830015 ) on Tuesday January 24, 2006 @04:33PM (#14551794) Homepage
    'I don't see how it's different than selling a used CD,'

    iPod and used CDs to become next fair-use battleground

    • Re:Modify the article title... (Score:5, Insightful)

      by slowbad ( 714725 ) on Tuesday January 24, 2006 @04:58PM (#14552042)
      Everything makes perfect sense once you repeat to yourself, "DRM is not there for my benefit"

      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.

      • If you actually ask Cingular about this, they'll tell you you can re-purchase the ringtone and then dispute the charge after you download it -- effectively giving it back to you for free. A pain in the ass workaround, and huge potential for abuse, sure...but that's the best they'll do for you.
        • A much better solution is to make your own ringtones on the computer and transfer them to the phone; Cingular is one of the carriers that allows you to do this with no strings attached.

      • Re:Modify the article title... (Score:5, Insightful)

        by Jtheletter ( 686279 ) on Tuesday January 24, 2006 @05:52PM (#14552609)
        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.

        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.

    • iPods and used CDs are different, so I think the original title is correct.

      Not even the RIAA would dispute that you own the physical CD medium, and that it's your right to sell it. If you've made a backup copy first, then you're a bad boy and they'll sue you.

      But it's harder to prove ownership of the music/video on the iPod. If you downloaded it from iTunes, you can't get it back off the iPod, so that's all legal. (More or less. I don't know what would happen if you opened an "iPod service station" downl
      • Not even the RIAA would dispute that you own the physical CD medium, and that it's your right to sell it.

        That's not true, they have disputed it. I believe Garth Brooks was one big name performer who was trying to push, along with the RIAA, to make the used CD market illegal, vowing not to allow stores that dealt in used CDs to sell his new material.
    • Used CDs have already been a target of the RIAA. At least, a target of Garth Brooks, and a carrot drawing the RIAA's desire to double-dip royalties.
      http://www.planetgarth.com/gbnews/garth049.shtml [planetgarth.com]
      http://www.signonsandiego.com/news/business/200206 14-9999_1b14usedcds.html [signonsandiego.com]
  • he will probably be asked not to do it shortly enough

  • i don't see how it's different too... (Score:2, Insightful)

    by Anonymous Coward
    selling a modded xbox with 60gig of pirate software.....

    different opinions i guess...

  • Meaningless (Score:2, Insightful)

    by Golias ( 176380 )
    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.

    • Re:Meaningless (Score:2, Interesting)

      by BDaniels ( 13031 )
      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.

    • Re:Meaningless (Score:5, Informative)

      by OverlordQ ( 264228 ) on Tuesday January 24, 2006 @04:48PM (#14551936) Journal
      From TFA:
      A "brand new" 60-gigabyte video iPod loaded with 10,000 songs plus more than 50 movies and TV shows, including the three Matrix movies and the first four seasons of 24. In the listing, the seller says the buyer "must already own all of the music and DVDs. ... If not, they must delete them as soon as they receive it in the mail." The item sold for $551 on Monday.


      You were saying? Sure not *far above* market value, but still.
      • I bet if I spent long enough digging through eBay archives, I could find several untouched iPods which sold for above retail. The fact that USA Today got wind of ONE iPod that sold for over $550 only proves that there's one idiot out there, not that iPods have created a fantastic new frontier for media piracy.

      • Re:Meaningless (Score:5, Interesting)

        by JudgeFurious ( 455868 ) on Tuesday January 24, 2006 @05:37PM (#14552483)
        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.

    • Re:Meaningless (Score:5, Insightful)

      by ecklesweb ( 713901 ) on Tuesday January 24, 2006 @04:48PM (#14551941)
      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?
      • You missed my point. Nobody is selling warez-loaded iPods for $800 in any real quantities.

        The best example they could come up with was one fool out there somehere who paid $551 for a used iPod. The example they lead with is being offered for $800. That's very different from news that it was sold at that price.

        Given that people willing to screw the copyright holder's can already buy music that cheap at AllofMP3.com, it seems kind of silly to suggest that there's massive demand out there for iPods laden wi

  • could be legal (Score:5, Informative)

    by stoanhart ( 876182 ) on Tuesday January 24, 2006 @04:37PM (#14551839)
    If he had purchased all those songs legally, and eliminated all of his own copies upon selling the iPod, it should be legal.

    • Re:could be legal (Score:3, Interesting)

      by csoto ( 220540 )
      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).
      • The last time this came up, Apple's position was that they would neither forbid nor faciliate such transfers (i.e. you can sell it all you want, but Apple will not help you change the DRM on the song so your buyer can play it). Ebay pulled the auction before the issue was truly resolved, so it's still unclear.
      • 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).

        I don't know how much you paid for your law degree, but I think you might want to ask for a refund...

    • Re:could be legal (Score:4, Insightful)

      by gbulmash ( 688770 ) * <semi_famousNO@SPAMyahoo.com> on Tuesday January 24, 2006 @04:45PM (#14551916) Homepage Journal
      If he had purchased all those songs legally, and eliminated all of his own copies upon selling the iPod, it should be legal.

      According to TFA, that wasn't the situation. The seller was stating that if you didn't own any particular song or video on other media, you were obligated by copyright law to delete it from the iPod.

      Spammers use this kind of shady legal reasoning to sell pirated software: They're not selling you the software. They're selling you the service of creating a back-up on CD/DVD. If you don't already own the software, you shouldn't buy it. It's not their fault if people who don't already own the software are buying these $60-$80 backup CDs and illegally installing the software.

      It's a bunch of hogwash, IMO. And whether they're getting ill-gotten gains by slapping copies of software on CDs and selling them via spam or they're slapping pirated music and video on iPods and selling them via Ebay, it's still crap. If the case you cited (seller deleted/destroyed any other copies he had of the music/video he was selling) was what was happening, that would be one thing, but most of these sellers are not that honest.

    • In this case I think it's fairly obvious that the seller isn't deleting the songs from his computer before selling the iPod. He's buying new iPods, sticking them in the cradle, hitting sync, then putting them up on Ebay for a $400 profit.

      While it would be easy enough to prosecute these guys under existing laws, I have no doubt this will be used as an excuse to create even more restrictive and unreasonable laws instead, much the same way AVIs were used as an excuse to create the DMCA, no matter that the l

    • Should be legal... (Score:3, Interesting)

      by Pollux ( 102520 )
      ...if he can actually prove that he owns the music on the iPod.

      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, an

  • One guy is selling one with the 3 Matrix movies... (Score:5, Funny)

    by Anonymous Coward on Tuesday January 24, 2006 @04:37PM (#14551843)
    ...for a 25% discount compared to an empty iPod.

  • distinction... (Score:5, Interesting)

    by ecklesweb ( 713901 ) on Tuesday January 24, 2006 @04:37PM (#14551844)
    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?
    • 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?

      Depends. The DMCA doesn't criminalize making the copy (you are allowed to make backup copies of media you own); it criminalizes breaking the encryption to make the copy. If the encryption was broken by someone in a different country where there is no DMCA, and you then make a copy of the unencrypted content, then you are not breaking the encryption, y
      • you are allowed to make backup copies of media you own

        No, there's no general exception for backups. Sometimes an exception can cover this sort of thing (e.g. 117 or 1008) but more often, that is not the case. Sometimes making a backup would be fair use, but there's no use that is invariably fair or unfair; it always depends on the circumstances.

        Incidentally, the operative word in 1201 is 'circumvent.' That is, to get around something. Getting around encryption by decrypting the ciphertext yourself doesn't s
    • Your distinction is probably valid, but I don't think it's possible for someone to give you the songs that they have legally acquired if all you are getting is the iPod. If they bought the CD, you should be getting that too, otherwise they are giving you a copy, which you have pointed out is illegal. Right now they can't give you their legally purchased iTunes downloads because there is no way to transfer a song from one account to another. Similarly, if they gave you an iPod loaded with movies, they'd h
    • I run Linux, and don't use iTunes. Can someone clarify if the license for music downloaded from iTunes is transferable? If it is, then you can go ahead and transfer your license to someone. I don't think that it does, and I don't think it ever will have a provision like that.

      Before the 1990s, there really wasn't the means to transfer music off of the media in a lossless fashion. There is now. If record companies wanted to, they could have ELUAs on each CD to make clear what your rights to use the data are.
      • I run Linux, and don't use iTunes. Can someone clarify if the license for music downloaded from iTunes is transferable? If it is, then you can go ahead and transfer your license to someone. I don't think that it does, and I don't think it ever will have a provision like that.

        To play protected ACC files (FairPlay) on a computer you must use (legally speaking and as implemented) iTunes and that system has to be authorized to play the music by the iTMS account that purchased the music in the first place (your

  • Not a fair use issue (Score:5, Interesting)

    by Dachannien ( 617929 ) on Tuesday January 24, 2006 @04:39PM (#14551859)
    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.

  • Used Music No More (Score:5, Insightful)

    by Anonymous Coward on Tuesday January 24, 2006 @04:39PM (#14551862)
    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.
    • The market dried up partially because with digital music there is no need for any album to ever go out of print again. It used to be that unless you wanted something released in the last year or in the top 1% of the most popular music you were stuck rummaging around through filthy overpriced unorganized secondhand music stores looking for the record.

      Now you can have a shiny new copy anytime you like. Since many online music stores naturally discount their music, it's often the case that you can buy the
    • And what about inheritance?
      Someday I'll own all of my dad's LP's.
      But anything he's purchased on iTunes will be tied to his email address...
      so will whoever inherits his email address also inherit the music he's purchased
      from itunes? Or does the itunes music store license prohibit that?
    • If only we had reasonable copyright-expiration laws this would actually be a pretty fair idea. Imagine being able to get the entire works of Frank Sinatra (for example) for free, anytime, anywhere.

  • eBay won't let it be... (Score:5, Insightful)

    by altheusthethief ( 918055 ) on Tuesday January 24, 2006 @04:43PM (#14551898)
    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.
  • If they were ripped from CD's, you're selling copies of the CD. That's copyright violation, unless you include the CD.

    However, if you bought them off of iTunes, and they are the only copies you have, then it seems pretty clearly legitimate. (Unless there are heinous contractual terms preventing transfers of the music from the original purchaser.)

    What if you bought them from Apple but had made some copies? Apple's DRM allows a certain number of copies to be made. Can I sell a few of my copies of the $0

    • there was the case of the guy selling his iTMS songs (just to see what would happen), but he sold the only copies of the DRM'd AAC files and transfered his iTMS store account to a disposable email address and a giftcard or some sort of visa card like thing that he could pass along.

      nobody stopped that auction (iirc) and he even said he did it to see if he would be told to cease, and what grounds they would cite. he outlined that he ensured that the songs were only for the buyer (deautherized his computer to

  • its obvious (Score:2, Insightful)

    by loserhead ( 941655 )
    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.

    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 /.er, but i try to fly "under the r

  • Remember kids! (Score:5, Insightful)

    by wfberg ( 24378 ) on Tuesday January 24, 2006 @04:47PM (#14551929)
    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.

  • How is this not piracy? (Score:4, Insightful)

    by 91degrees ( 207121 ) on Tuesday January 24, 2006 @04:48PM (#14551940) Journal
    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?

  • Best anti-DMCA example (Score:4, Interesting)

    by Steve525 ( 236741 ) on Tuesday January 24, 2006 @04:50PM (#14551965)
    "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...

    A "brand new" 60-gigabyte video iPod loaded with 10,000 songs plus more than 50 movies and TV shows, including the three Matrix movies and the first four seasons of 24. In the listing, the seller says the buyer "must already own all of the music and DVDs. ... If not, they must delete them as soon as they receive it in the mail." The item sold for $551 on Monday.

    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 [answers.com].

    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.

  • Sounds familiar. [slashdot.org]

    Is there any place where someone can buy a 250GB hard drive that is pre-loaded with movies or Simpsons episodes? If not, then maybe I should start a little black market business...
  • 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
    • If I didn't see those ?'s, "'s, and that > in your post, I would have assumed your shift keys were broken.
    • 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.

      Copyright does have it's roots in morality. To protect the rights of the original creator of an artistic work. That way nobody else could claim they were the one who wrote a book, or a song and exploit it for their own profit.

      music, in quality and quantity, will not change in the least. you could even make the argument that music would get bett
    • we just want to listen to music. and we will continue to do things exactly like this eBay case for all time.

      So you buy the iPod, take it home, sync it up to your computer... and...

      FOOM

      All the music's gone.

      You don't get to listen to it.

      Unless you're just going to use the iPod standalone, and never (even accidentally) sync it up, you're spending $300 for a time bomb. Even then, you're going to lose all the music when the hard drive dies.

      This isn't fair use, it's a scam.
  • If I can't copy the music between iPods, can't move the music to a new computer, and now can't sell the iPod with the music on it, what exactly am I buying? Do I even get to LISTEN to the music, or do I need to first sign a form somewhere that clearly states my intent to do so with no other persons within earshot? Good grief.

  • Reputable legal advise!?!? (Score:3, Insightful)

    by RingDev ( 879105 ) on Tuesday January 24, 2006 @04:59PM (#14552045) Homepage Journal
    "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
  • 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 issu

  • Limited value....... (Score:3, Interesting)

    by joabj ( 91819 ) on Tuesday January 24, 2006 @05:31PM (#14552421) Homepage

    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 sti
  • ...and then sold it on eBay, would you actually be committing four crimes?

    Once for the initial theft, twice for the illegal eBay resell, third for selling music, and finally fourth for selling movies?

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