90% Crud

Dumb idea. You're a fucking moron for even thinking about this. You paid 99 cents or this track, you should have no reason to sell it.

Read the Apple Legal stuff that you agreed to when you signed up for the music store. You're not legally allowed to do this.

Good luck, dipshit, Apple has all sorts of preventative measures in place to keep you from doing this.

Immoral and illegal.. wow, you really wanted some attention eh?

What about breaking it into parts? You could sell a CDs box, label and disc separately after all.

Idiot tries to auction an iTunes Music Store Song

http://www.beggingforattention.ca/

This guy, who must begging for attention, seems to have no concept of how the iTunes Music Store and the aggreement with Apple work.

You'll have to excuse Dave. He has a hard time understanding reality (reselling music is Immoral?). Go back into your padded room Dave.

Dave, your eloquent and persuasive arguement was effective. Kudos to you sir. While George might want the attention, this is purely an experiment in the world of commerce and music rights on the internet. Apple's legal "stuff" may address this issue, however, and while I'm sure your law degree (which I assume you have from your sophisticated use of legalese) affords you the right to criticize George for not reading the fine print (though I believe he has), I don't believe you have touched on the issue of private resale of personal property.

By transfering the rights of the song over to the bidder, George is passing license on as well. How is this different from reselling a car? George can't listen to the song once transfered. It appears to me that the song is therefore legally transfered to the next person.

It seemed a bit pithy, but the more I think about it the more interested I am in watching what happens.

The account-centric nature of this reminds me a fair amount of people selling EverQuest "characters". Of course, the only way to affect the transfer was through transfer of the account itself, which was a no no.

Interesting.

I wish you luck with this, I can see you opening a floodgate if this is allowed. and considering youre makign a profit at the moment but that may be due to the sheer uniqueness of the situation and may wear off after.

good luck

Interesting. I wonder how "value" works after the initial sale. Taking this further, a community could develop where songs purchased at their retail value -- $ .99 -- are then resold for $ .01 or $.05 of whatever "value" they have in their second market incarnation. Although Apple's DRM implementation doesn't allow a song to be used on more than three machines. Determined by what? I forget.

What if one had a collection of thousands of iTunes. In a couple of years, one could feasibly own that many. Now, what if I really need the money and want to sell 2000 iTunes for $500. I'd get the money I need and someone gets these songs for 25% of the original price. This is immoral? That's the way it works with anything else you buy, including software. Thanks, for helping sort out these questions early in the game.

Amazing, I was wondering the same thing for the last couple of months, BUY music (misleading) was the first to openly publish (at least the media published) that you get the songs for yourself as if you are renting it, even if I am renting, I should be allowed to "lend" it to my friend. Maybe EFF could file a class action suit against RIAA for stealing our rights as a buyer. Time to show those *holes that just like we are not supposed to steal from the musicians, those sucmbags cant steal money from us.

Hey George;

Interesting concept, except, there is a big flaw in you experiment.

You need either an iTunes or iPod to listen to any song from ITMS. Only way you can give this song to anyone that does not have either one of these is by burning a CD, which I dont think you are allowed to do.

If a person has iTunes, he can buy the song themselves, cutting out the middleman (i.e. George).

If a PC iPod user wants the song, they can't get the song unless they use crazy workaround to get it on their iPod. Which I dont think is worth it for 99¢ song.

So I dont see how someone is willing to do this with you. As far as I know?

Apple does not have a return policy on Songs you buy from them. I think thats why they have a previews of the song, and they are clearly marked if there are more then one version of the song. (buyers remorse need not apply)

So excuse me if I am confused by your experiment.

You are allowed to burn CDs of AAC files you have purchased from the ITMS.

This will only work if you authorise the buyer's computer to play the AAC file. Fine, but you can only authorize 3 total computers to play songs you have purchased. So for a stunt it's fine, but you won't be able to sell songs to more than two different computers. (Yours plus 2 more = 3 total
authorized computers).

Rob

Re: Robert Dodson

Can a computer be "unauthorized?"

Lol it looks like everyone here understands what he is trying to do, and this will be interresting to see what happends. The evercrack is a good point which pisses SOE off that playes do sell thier chars and or items. This should be interesting to see what happends.

You can unauthorize a computer.

Interesting this hasn't been attempted to date. Thanks for taking the debate up a notch or two on the awareness scale.

Since I'm a Windows user and do not wish to enter into any kind of business relationship with Apple (where they might insist I give up some of my rights...), how about if you convert the file to a non-DRM format before you sell it to me? After all, interoperability is a specific exemption to the DMCA! (Chew on that, Apple!)

I understand the point that you are trying to make or question.

The only way I see this as being feasible (practical) is if you were to burn the song (or album) to a CD, then subsequently delete the song from your iTunes library.

The purchase agreement allows you to burn the song to CD. Once you do this and delete the digital song file from your system, it will only exist on the CD.

You *could* be able to then sell that CD to someone else, and you would no longer have the music file in your posession.

However, I'm not sure that the iTunes Music Store license agreement that you agreed to allows you to do this sort of thing, vis-a-vis the statement that reads "You agree not to modify, rent, lease, loan, sell, distribute, or create derivative works...".

Also, I have to ask who in their right mind would want to buy a tune in this manner - especially considering that they could just buy it for themselves on iTunes Music store. The Mac-only argument doesn't quite hold up as it will soon be available for Windows users as well.

Yeah, there might be a couple who would want to get (buy) it this way, but really, is it worth the trouble/hassle?

And if you were to do as described above (burn to cd and delete file) then sell

It would not be cost effective. Afterall, no one would really want to pay more than the .99 cents or $9.95 for the album that you downloaded, and you have to pay the cost of shipping as well as the cost of the CD and case/packaging.

not worth it really.

Prepare to be slashdotted in about 5 minutes...

Comming form slashdot, so get ready.

Now, the only problem I could see is if I-tunes denied to change ownership of the file.

I've never used I tunes so I don't really know how their system works. Also, is there a part of the TOS that says that they can change the TOS at any time, because they could use that to add the no change of ownership.

Great idea! But Xaoswolf is probably right, I doubt Apple will take kindly... on the other hand, they could help you out. I give it a 50/50 chance.

Watch out for slashdotting... I give it an hour or so, then the whole East Coast gets off of work... your poor server...

I am guessing that apple's licensing is similar to software licensing. You may have to request in writing a transfer of ownership.

Good experiment. I just want to know what anyone is doing touching a mac?

I support this completely. I hope ebay doesn't quietly remove the auction, and this becomes a big debate about the legitimacy of ownership of digital information. Up until now it's been nothing but "you're stealing", now I want to see exactly what it means to 'steal' something.

Nice try, but this simply won't work. There is no such concept of digital property. Everything is license-based and the owner of the copyrighted material is free to dictate whatever terms of license they decide. This is already a well-understood part of law, so just because you don't understand or accept it doesn't mean that it doesn't apply.

This will take all of 10 seconds to close this case. I think it was a noble effort, but in the end, it's meaningless.

Hard to believe a $0.99 is already at $36.00 on your auction. I like the description you put up, it looks like you dotted your i's and crossted your t's.

I'm certainly interested to see how this pans out. If Apple is going to whine about this, then perhaps Pontiac should whine about used car selling? Of course, their solution is trade in value... so perhaps, Apple will set up a "return" policy, so that they can then "resell" the music at a discounted price.

But then it begs the question, is a used car like a used music file? The parallels to other mediums are there, yet the nature of the product itself is different. Apple may whine, but I really wonder WHAT they plan to do about it. Personally, I don't think they can stop you (or anyone else) short of amending their Terms and Conditions, along with other Legal Jargon.

Quote: "However, I'm not sure that the iTunes Music Store license agreement that you agreed to allows you to do this sort of thing, vis-a-vis the statement that reads 'You agree not to modify, rent, lease, loan, sell, distribute, or create derivative works...'."

Would burning the song to a cd qualify as a "derivative work"? If you were to burn the song directly to a cd, without modifying the song in any way, then doesn't it still remain the original work, or do I have no idea what I'm talking about?

George specifically states he is doing it to test the laws. Apple has specifically stated you own the song when purchased. So the question is does Apple's disclaimer of 'no-reselling' have any binding.

If George owns the file, he ought to be able to sell the file (and his single user license to it) to someone else. there is such a thing as rights of ownership.

What if george were to sell the file for 5 cents instead of 99 cents...surely there would be IPOD users out there willing and wanting to pay that for a song.

This is a very important issue to test. This issue was fought over a long time ago. Libraries and video rental stores rely on First Sale rights. We are allowed to rent or sell something we bought, in essence, we can dispose of it how we wish. Imagine if libraries were considered illegal because of all the lost sales of books. *My Gawd! We have whole groups of people reading a book for free at the library and not buying it* As we move into the digital age, much of the technology out there is creating barriers to our fair use rights.

Holy crap! It's up to 274! I just looked at it 5 minutes ago and it was 22 dollars! Good ol' slashdot

Nice experiment.... hope something positive comes out of it. The issue with DRM will stay with us for a long long time and we shall see more of such experiments.
Whats interesting is that the Current bid as of 4:30 Eastern is US $274.69. Will wait to see a response from Apple.

Awesome man!

> owner of the copyrighted material is free to dictate whatever terms of license they decide.

Do you mean "free to attempt to license however wished" or that the courts are likely to uphold any license written ?

If the latter, I am dubious. I suspect various obligations written into a license would not hold up. (I do not intend to address here circumstances in which the entire license may be likely invalid, such as if the licensee was under duress, or underage.)

For example, I suspect that provisions requiring the licensee to promise to donate body parts, or offspring, or commit violent acts, or do anything at all illegal or immoral, would be unlikely to hold up.

So, between these extreme cases (of things unlikely to hold up as legally binding), and the cases at the other extreme (of things quite likely to hold up, such as perhaps needlessly written obligations to pay for the original and respect existing copyright law), there is a vast gray area, of what is validly licenseable and what is not.

Nice experiment.... hope something positive comes out of it. The issue with DRM will stay with us for a long long time and we shall see more of such experiments. Also a lot of people mention the .99 cents. I think that is not important anymore cause now the song is legally his. We do by cds listen to them and sell them or trade them in. So suppose I buy a cd for $19.99 from BestBuy, and sell it off for $9.99, which I feel is a fair price for someone to own a used cd and in his gain to buy a cd from me and going around the whole cirlce of music labels and royalties. Whats interesting is that the Current bid as of 4:30 Eastern is US $274.69 now is someone stupid to pay that much for something he knows he can get for .99 cents or does he want to leverage on the attention part. Will wait to see a response from Apple.

Wow. Up to $350 as of 1:40, PDT... This is going to get interesting.

I suggest you commit to donate the net from the sale to a suitable organization (like the EFF, or your favorite charity).

You might consider putting on the bid page that you can/will ship on CD, thereby bypassing eBay's no 'online' or 'virtual' products for sale... Or something to that effect.

I think what you're doign is a legitimate test, and the OP [dave] has no clue what is going on. Right of First Sale is something I figured that would get flushed away with enough contributions to politicians by large corporations, but maybe this will point at something better.

I am also interested about the interoperability clause of the DMCA, that would be the first time I see a user [and not a multimillion dollar corporation] (ab)use this law. Maybe some other user could test this, if they have some kojones. Things are in a sad state...

I suggest you read what george has already posted before you comment

Someone just screwed up your bid, unless they are really willing to pay US $9,600.00
some people just don't get it I guess
hope you can delete that bid, I can't imagine it was legit.

Remember, George said that he would be giving all proceeds to the EFF. This is purely an experiment in 'the right to property'. He isn't trying to make a buck and the people bidding are either running the price up or are willing to support the case that George is making, knowing that it will be given to the EFF to continue 'the good fight'.

I'm interested to see how this plays out. Good luck George.

Even if the bid isn't legit, the issue will still be on the table until it is formally addressed.

This is an interesting test, very similar in theme to Cringley's hypothetical Snapster. If the song can be sold many times, the record industry disappears, as it's trivial to come up with a market for used mp3s/AACs. If it can only be resold once.. I wonder if the market is that much more difficult.

However, even if these fail, the real fallback is the Library. If you and your local Library have a broadband connection, Buy media and give it to the Library. Give your old music, DVDs, etc. to the Library. Let them redistribute it, with a DRM platform to protect it from duplication (although libraries don't even do that with CDs and VHS tapes currently). Then, your purchase will likely be available to you whenever you want it, but it will actually be the property of the Library, who will, in the tradition of Libraries, seek to share it with maximal efficiency.

This solves property questions: the library has the only hard-copy.

This solves DRM: if it's coming, lets have it work for us instead of against us. Poetic Justice.

This solves commercial problems: copyright's fair-use clause smiles on non-profit use. Also, Libraries have a long history here, as noted above.

Libraries are the right place for this to happen. They are the right institutions.

I am working on just such a platform, based on Sun's OpenIPMP, and am planning to demo it to my local library in Jersey City, NJ this fall. A friend will try to demo at the same time in Cupertino, CA. I encourage you to do the same :)

Hmmmm....I could buy a dozen of these, burn em to CD's and then sell the cd's for less than half of the retail cost. Wow. Become a distributer. Now that's a candidate for a stay at home business.

Someone commented earlier that perhaps all this will do is make Apple change it's TOS... while this is very likely, it might also create the awarness that there may in fact be a DEMAND for a service which allows the reselling of digitally purchased music. I'm sure that EBAY would be happy to set up a service where users could bid on music (ebay style) or purchase used music (half.com style) and have a way in which it transfers the rights of the song. I imagine there could only be a few players in such a market, and any company would be chomping at the bit to get a chance to be one of them.

he said that he would delete the file, just as if you handed someone your hard CD.

Looks like ebay may have a problem with this, even if apple don't.
http://pages.ebay.com/help/policies/downloadable.html

Unfortunately, the fake bids are ruining this exercise. If you can't collect from the top bidder, there's no sale, and the exercise is moot. I'd suggest cancelling some of the largest bids from new users with low or negative feedback and contacting top bidders to confirm their desire and ability to pay.

Hopefully you can get a real top bid and test the first sale doctrine.

Oh by the way...distributing CD-R or DVD-R on Ebay is a violation of their policy unless you are the copyright owner.

Duke Law on the Right of First Sale:

http://www.law.duke.edu/journals/dltr/articles/2001dltr0018.html

I have another question on the same line of thought. If I die am I able to transfer my collection of itunes to my children or does my rights to these song die with me.

I would think i should be able to transfer ownership of these songs. Just like they were any other piece of property.

Hey , if I file bankruptcy and I list my itunes as equity van the court sell them at auction?

just wondering

Mark

Because this is a legally purchased song, it has some weird licensing stuff (called Digital Restriction Management, or DRM). This means it may be tough to get it to work on your system. Still, I'm a geek and will do my best to make sure you can listen this fine song. If we cannot get the song to play on your system, I will refund your purchase price.

have you given any thought as to what happens if the buyer wants his money back after you've donated all the money to the EFF ?

Well, just don't donate the money until the buyer acknowledges success.

from the duke law link:
"First Sale will also not immunize me if I sold pirate phonorecords I had reproduced from a lawfully obtained copy because each and every reproduction is not the "particular" and "lawfully obtained" copy I was sold."

if you can lawfully burn the itunes song onto a cd, then wouldnt it still be covered by first sale, since it is "lawfully obtained"? although I guess the "particular" clause could be a sticky point.

You should list in the auction that you will be mailing the winning bidder a copy of the iTunes registration and/or song purchase invoice. This would get around the physical item ebay restriction.

There's also some interesting discussion about this on slashdot. Good job, George, on getting the debate going.

Make sure you change your credit card information that's listed on your sellers account with ebay. Your current final value fees would be well over $150.

eBay's policy page covering Downloadable Media can be found here:

http://pages.ebay.com/help/policies/downloadable.html

It seems that you need to transfer ownership of actual physical goods, even if it's just a username/password on a postcard.

Hey- you might want to change the shipping information, as eBay specifically prohibits the sale of digital goods (this song) that are being delivered electronically (through email/web).
Meaning- you'll want to burn it on a CD and ship it that way :)

I find the experiment very interesting. What a pity the bids are so outrageous -- I would have loved to buy the song and see whether I can use it in Germany, too. While I have a Mac, Apple doesn't let me buy songs (yet)! So... would it be illegal to sell the song to me? If yes, why?

I don't see a problem with reselling a file a couple of times, by the way. The previous owner can just deauthorize the song on all of their computers first.

I'm a Windows user and do not wish to enter into any kind of business relationship ... where they might insist I give up some of my rights.- Piggly Wiggly

Too late.

the ebay auction is now at over 20000 USD!!

It seems pretty plain to me that this quandry is exactly the reason we need to rework our IP laws... Currently every law regarding digital duplication is based off of laws used to control physical media, which is it's own form of protection. While one can theoretically photocopy a book the actual tedious process of photocopying prevents most infringement from taking place. Not so of course in our new digital millenium, as there is nothing preventing someone from 'selling' their purchased song and just not deleting the file afterwards. Of course Microsoft will tell you that their new DRM software will prevent this exact situation from happening but god knows if MS really tries to implement it the greatest migration to linux will occur. But I digress...

I think the end result will have the consumer's paying drastically reduced prices for IP but revoking their right to resell. This makes sense in a way because if we are going to have to apply capitalism to the internet then the consumer should ultimately be the winner - as more and more IP finds it's way onto the internet the price for individual instances will decrease. The content consumer will be born and will probably pay the same amount our of their pocket but get 10-100 times the content. Of course that may be wishful thinking (the RIAA / MPAA will kill themselves trying to prevent this) but the 'indie revolution' will be invetiable... as more and more children who have grown up with ther internet turn into singers / writers etc more and more content will be provided for free or a very minimal charge.

I support you in this. This is completely legal -- you bought the song, it's yours, you should be allowed to sell it. Just like if you buy a CD and decide you don't like it, you can sell it at a garage sale or whatnot and get some cash. Or if you are selling a car. It's not like he's selling it and keeping the file -- that'd be piracy.

wow, >$2000 and the highest bidder has 32 positive reviews... its hard to believe that that could be a serious bid, but could someone forge such a good reputation? sell/buy to/from a bunch of freinds maybe? well, at least its a bunch of money going to a good cause

I find it emminately interesting that the whole "RAM copy is infringement" case rests on the assumption that the *WHOLE* file is in RAM.

If your MP* Player merely pipes the 1's and 0's through a decoder and out to the speaker from the file location (obviously a CD-ROM or other removable media that you purchased legally - of course!), then you are not infringing. Even the Duke site bandied about makes this assumption of "whole file in RAM".

Remember, if not, then even a regular music CD would be infringing: It merely pulls data from the media and funnels it through the decoder (some hardware, some software) to the output (speaker or headphone).

What about Anti-Shock systems on CD Players that explicitly hold parts of the information in a memory location? Wouldn't these be infringing devices if the "whole file RAM copy" applied?

Now >this

Now *this* is interesting. I'm very curious to see how this turns out and I think you may very well have found your good idea for the year.

Auction description is quite humorous, too.

Given that it's at $360 right now, I guess a lot of folks like the EFF. I certainly do but I don't have the scratch to show my love :/

What happens after you amass a collection of 10,000 songs? Is it an asset? A part of your estate? Can your children inherit it? If not music will not pass from generation to generation and will be quickly forgotten

fart

I think you are missing the greater issue here. How can you really trust someone who has a 1 user feedback rating on ebay?

from ITMS

" Any burning or exporting capabilities are solely an accommodation to you and shall not constitute a grant or waiver (or other limitation or implication) of any rights of the copyright owners of any content, sound recording, underlying musical composition or artwork embodied in any Product."

You dont own it, its just a lease, you cant sell it.
PS by offering it for sale you just lost your lease.

The agreement with Apple specifically allows exporting the Product, even though the Service is not offered outside the US, so you are not barred from selling to a non-US buyer.

The agreement restricts the ability to "modify, rent, lease, loan, sell, distribute, or create derivative works based on the Service". the Service is not the Product. The agreement does not prohibit these acts for the Product.

The distinction between the Product and the Service matters.

The Duke item is a position paper, not a statement of current law.

Rosen:

Suppose he weren't to burn/export the copy but merely sold the harddrive of the computer... or, in the original download, saved it to a removable disk and sold the disk?

Even if it was referring to the product, it means specifically a 'derivative work', which is not the work itself. IE; remixing the music and selling it would not be allowed... it says nothing about the actual rights of ownership to the original copy.

quote from Rosen: "Any burning or exporting capabilities.."

Electronic transfer is not exporting. The simple way for this transaction to be completed is as follows.

1) Some guy on eBay wins the auction.
2) The song in question is transferred via FTP, AIM, email, etc. I imagine this will include the DRM necessary to play the file.
3) That's it. No burning, no exporting. Simple transfer.

You're all missing the point.

Apple is going to sit back and smile, bless this, and come out looking like roses. Why?

Because in the real world, outside of this publicity stunt, *nobody could ever do this for profit*.

Hint: there's no scarcity. Anyone who wants the song can get it from Apple for 99 cents anytime. You charge more than 99 cents, nobody buys it. You charge less, and you take a loss--so you'll never do it.

Whether this is legal or not is almost irrelevent.

The music companies don't want you buying used cds. They want you buying new cds. They simply can't physically prevent you from buying cds from whatever source you choose. With digital files they CAN prevent you from doing this and will likely pursue it.

For the record, I think that if I purchase a song, album, or whatever I then own a transferable right to listen to it in whatever form I choose as long as I'm not making copies or broadcasting it electronically. This may not be the reality, but it seems fair...

wow $3,500 dollars now with six days left

a more interesting stunt would be if someone bought the aac and managed to conight it into wav, ogg, or mp3 format and then sold it.

wierd...back down to 800 some now

too bad i cant edit my post

ok.. so long the same lines as this issue. What would happen if i decided that i wanted to give someone a song bought fron I-Tunes.
Here is a scenario. I buy a song from ITunes, listen to it for a month or so until i am tired of it. Then lets say a friends birthday comes up and as part of a present for this friend, i burn my ITunes song to a CD (and promtly delete it from my machine) and give that CD to my friend.
So the question here is, does my friend now legally own the song, or do i? And since in theory i have not copied the song, i mearly transfered it from one media to another, and i have not made any money or received anything for giving the song to my friend, have i broken any laws?
Not that i am such a lame cheapskate that i would actually give a friend a .99 cent song burned to CDR for thier birthday, but i think this scenario raises some more interesting questions in realtion to this issue.
Its not about the money, its about who really owns the file and what rights you really have once you have paid your 99 cents.

Way to go George. It will be interesting to see what happens with this.

I think it's good you're doing this. It seems pretty logical to me. I doubt Apple could do anything but suspend your iTunes account. I don't see how it would be illegal.

If you buy music from a store, you own the CD. Record labels could care less if you buy it from a friend, simply because they already made their money. They made their money by selling the CDs to the store. They have their money and they're already smoking sweet cigars in their comfy leather chairs. If anyone's losing money, it's the stores that sell the music.

Hum... Neonight brings up another issue I am curious about. Assuming this is legal, _can_ Apple still suspend the account because of this? I mean are they allowed to arbitrarily prevent anyone from using their service without any reason? Any legal buffs around with an answer? =)

Way to go George. Thanks for helping to bring up one of the real issues behind the future of digital media into the spotlight. We at www.DarkNebula.org are going to follow your progress and hopefully help to, in some way, shed more light onto the problems with the burgeoning digital media infrastructure.

Its funny how everyone is bashing or flaming this guy... I laugh, why do you even care whether or not its illegal or whether or not hes begging for attention? As a teenager, I think this is a funny situation and a good idea. Legalistic middle aged balding women are the only ones concerned with whether or not this is legal according to their interpretation of Itunes agreements and such. Shut up. Who seriously cares?

And the only ones who worry about those who want attnation or those who've lost attention.

Brian:

What you said was partially true. In the real world, no one is going to compete with iTunes by selling things on eBay... because, as you said, you can't really make a profit.

However the point has been raised that if someone amasses a large collection, they may end up wanting to sell it off for less than they paid for it, as opposed to ditching it altogether. This is an instance where the sale would have a practical purpose.

It is against ebay rules to post items that need to be downloaded.

You would have to burn it onto a cd to sell it on ebay.

Love the idea, I was planning on bidding just to take part. But $820 is a little too rich for my blood!

Neonight:
I believe that the record companies DO care about second hand sells. You're point is valid that they already made profit once, but isn't the drive of capitalism to make as much profit as possible?

Therefore the music and movie industries want every purchase to be a first hand store purchase, and NOT a second hand used purchase.

If they can force all media into first hand purchases (ala digital downloads and drm, or maybe a new 'smart' cd) then that would be the maximizing of profits.

Of course, that would be the end of fair use, but they have been working on that for a while.

I think we're all missing an important issue, here.

Many of you are comparing this issue to that of a used car, or used CD. The reason why these things sell for less is because they have tangibility and depreciation.

Tangibility means you're buying a product you can hold and feel. Something you can't immediately and accurately duplicate. The reason why you can sell used CDs is because the product that you're selling is different than the product at the record store. That's why a used CD market exists. Once you open a CD, it's worth less, because even though the digital music on the CD is exactly the same (given no imperfections on the CD or pressing errors, etc.) there's always room for damaged packaging, or a less than stellar appearance of the artwork or disc itself due to normal wear.

Apple is marketing no such product. It's selling digital music. A file downloaded from Apple is going to be the exact same product as someone selling their own iTunes file, with no depreciation. Therefore, you're selling the exact same product, that you got from Apple, for a fraction of the cost. If you were Apple, wouldn't you be pissed?

You've listened to that song 100 times and you get absolutely SICK of it. You've used it for it's intended purpose, and are selling it. As soon as people download every iTunes song at least once, there will be a secondary market for sellers and buyers for every song out there, putting iTunes out of business.

Same can be said for the used CD market, yes, I know. But the fact of the matter is, is that CDs wear out. They get scratched, and lost, and whatever. This is true. I've bought multiple copies of many CDs just because my first copy wore out, or I lost it, or something like that. It's the tangibility of the product that I think is the deciding factor.

I love the argument, though, and I wish I had thought of it first.

Good luck!

-chris

I tell you what... To be a good scientific test of the process.....

Two sets of two people.

Persons A & B...

Person A buys a specific CD and sells it to Person B for an amount that is equal to the original purchase price.

Persons C & D...

Person C buys the same songs as on the previous CD from iTunes (or some other outlet) and then sells the same songs to Person D for an amount that is equal to the original purchase price.

The two test cases should have the same outcome. Persons B & D now have the songs and can listen to them as much or little as desired. Persons A & C do not have the songs in their possession.

What would happen? You tell me!

Okay, so he adds an item to the auction - some air. Roughly the amount that can be delivered in a standard envelope.

Wouldn't it be *ironical* if the high bidder turned out to be none other than Frankie Smith?

He's sort of down and out right now - could probably use some money from the sale of the song... I saw him on an episode of "American Justice" where the kid who signed him was a blow dealing dental student. The student made tons of cash off the song, used it to finance his dealing. Frankie Smith hardly got anything. The angle of the story was that the dental student cum dealer was put away for waaayyyy too long. He was dealing only to the high society/politician types and they hung him out to dry when he got caught.

You guys that think this is a good idea are all in error. No more needs to be said, just try and think of what this would be like down the road for the iTunes music store.. it would mean that it's going to be screwed by people reselling all the tracks on it..

So while it was an interesting idea, now that the auction's up to almost $3000, you've got a mess on your hands. hope that works out ok for you.

^^^^^^^^^^^^^^^^^^^^^^ggg

Well, the easiest way is to burn it to a CD, and RIP it back to AAC. Then it won't have any DRM.

But, back to the point you're trying to prove, you should have just read the Terms of Service for the iTMS:

Usage Rules.

Your use of the Products is conditioned upon your prior acceptance of the terms of this Agreement.

You shall be authorized to use the Products only for personal, noncommercial use.

You shall be authorized to use the Products on three Apple-authorized computers at any time.

You shall be entitled to export, burn or copy Products solely for personal, noncommercial use.

And then again:

The delivery of a Product does not transfer to you any commercial or promotional use rights in the Product.

So, that should answer your question as to who owns the music you purchase at iTMS. You can't resell it. No need to continue selling on eBay, unless you want to have a meet-and-greet with Apple Legal.

Great idea I was thinking about the music file question and transferability of it as well. But I think 99 cent is way too much for a track I would say .5 cent for a song is a reasonable price. Here is my cause, there are various online and music shops that sell second hand cd for like 7 $ with a sleeve and covers that is about 60 c a song still cheaper then online downloading songs. I think the online music stores will not do so well after a year. Computer is too volatile, your hard drive can burn out, your mom deletes your Manson etc.

If this goes through, and the license is transferrable (by means of the sale) what is to keep a person from buying 500 licenses of the song, and starting a napster like service to swap files AND licenses (note: in this instance, no more than 500 people could posess the license and file simultaneously)

Each "user" of the system would be transferred a license and copy of the file while listening and the license transferred back to the system and file deleted after the user is done listening (and the license recycled to other users).

The number of simultaneous listeners would have to stay less than or equal to 500. Would that be legal? (It'd be like starting a cd trading group..except this would be an electronic license/file trading group)

This would be, in essence, the same model the library uses when you check out a cd (or am I mistaken).

Legal? Illegal?

Good job, George! You're brilliant. And I truly hope that someone ponies up some big bucks for the tune, the EFF can surely use it. All the best to you.

I just want to let George know that he atleast has my support. It's great to see people trying to make a statement like this.

Cheers, man.

Very interesting. Keep it up, an' let us know what Cupertino has to say in response :)

PS: very good of you to donate to the EFF. Even I thank you :)

If you read the iTunes agreement carefully, you will see that the language is stated in such as way as to not allow you to sell the downloaded files.

It is in the description of the Service under the "ownership" clause. According to the description, the service includes the "material owned by the Licensors" (i.e. - the music files). So when it talks about not allowing you to rent, lease, loan, sell or distribute...", that means teh downloaded music file.

You had to agree to this service definition in order to use the service in the first place.

Therefore, you cannot sell the downloaded song.

what if you sell your time and resources used in downloading the song for another person...
the bandwidth and labor of downloading the song should have some value

A sure way to "defeat" the DRM and transfer the buyer the 100% functional copy would be to include the entire hard drive in the deal. This could be pretty reasonable if you have a small obsolete hard drive handy. For example I have a 125 meg drive I'd happily sell for $25 for this sort of project :)

TO all those who are crying out about the "Apple Fine Print". I believe this is an experiment in testing whether or not that Apple legalese holds water in the face of certain fundamental rights that may or may not be enshrined in law. So really, it doesn't follow that, as one poster put it, "you cannot sell the downloaded song". Patently he can sell it and is selling it.

Whether or not the Apple T&Cs are enforceable is the question, not the content of those T&Cs themselves. If you don't understand that - as I see a number of posts doing so - go round and read it again. You'll get it.

Of course the only way it'll get properly tested is in court. I wonder if George is willing to go that far.

- J

I think the important thing to note here is that this is NOT about slagging Apple, or even the iTunes Music Store. I happen to know that he is an avid user of Mac OS X - and loves it!

The larger issue is that George is trying this experiment to test issues with DRM, and the execution of them. This experiment might just as easily have been performed with a Microsoft product or program - I think this method was the easiest to use, for now - because it's the service out there right now that makes the most use of DRM on a consumer level...

Glad to see you're doing this, George - I think it's going to be very interesting indeed to see what comes out of all of this.

This is a really interesting experiment, and begs the question of what status as a unique possession anything should have once technology advances to the point where it can be easily and cheaply copied. Should such items lose their legal status of being unique property that can be owned, controlled and rights asserted over?

If I had a machine that could create copies of PCs out of thin air what's better for society, making it illegal to do it to protect PC manufacturers, or letting the whole of society benefit from being able to have a PC for virtually no cost? It's a shame that "the whole of society" doesn't have a good lobbyist.

Umm just a thought right now this auction is at $100,100 if im correct this is a $16,000 final value fee.. Now if this guy doesnt pay up ebay are going to be all overyou like a rash.. if this guy is legit is he getting ready to sue you???

-Marc

An interesting question.

A worthy fight.

Good Luck !!!

justed

Very interesting will keep an eye on how it develops.

bakerman (ger)

I'm with you, Sharrow. The whole notion of ownership is totally bogus when it comes to intellectual property. No idea is born in vacuum, even George's here must have had inspiration from countless sources. In giving credit one could even point to the entirety of his prior experience, of which millions of people played a part. Now how does that differ from any creative act? The song in question is the product of 'the greater society' not the individual. I tell you - we all own it, or no one does.

Anyway - an impossible cultural shift. But a fun thought experiment.

Hey what song is it anyway?

Hi, and congrats on this interesting experiment!

Personally I think you _have_ to go about trasfering the ownership of the song with Apple. This is the only true way to carry out the experiment corectly.

Setting up another account and buying the song again would be selling a differnt song and not the one you are advertising on ebay.

Good luck!

Hey great idea.

I have a song I purchased on iTunes as well and I have a deal for you.

Since I listened to my .mp3 over a hundred times I am sick of it and I too want to sell my .mp3. Why don't we sell each other our .mp3's for $.49 each.
In fact, since it the check, envelope, and stamp will probably cost more than $.49 maybe we just call it even and exchange (trade) our products. I could legally do that with a tangible or intangible (service) purchase, no?

If this is legal then what is the difference between doing this or simply using P2P software to trade?

George --

I'm truly impressed. I caught wind of this through my friend Sean's blog (inertramblings.com), and recognized the domain.

You had better come up with a talk about this for the next Rubi-Con. =)

/Andrew

You already mentioned holding back enough cash to cover the eBay fees.

Also don't forget to keep enough to pay off the motherfscking IR$. Your sale would be a gain on the sale of a capital asset; see Schedule D instructions for the definition of capital assets, sale thereof, and treatment of gain therefrom.

Even though you're donating your profits to the EFF, it's not a wash. The IR$ will recognize a taxable gain equal to the full amount of the sale less the $0.99 purchase price less the eBay commission.

Disclaimer: IANAL, but you may want to talk to one about the tax implications.

"Its funny how everyone is bashing or flaming this guy... I laugh, why do you even care whether or not its illegal or whether or not hes begging for attention? As a teenager, I think this is a funny situation and a good idea. Legalistic middle aged balding women are the only ones concerned with whether or not this is legal according to their interpretation of Itunes agreements and such. Shut up. Who seriously cares?

And the only ones who worry about those who want attnation or those who've lost attention.

Posted by: Cadengo at September 3, 2003 09:29 PM "

Well, America at it best, ignorant and irresponsible, with no morals or scruples.

Hey idiot, get a clue, its real world, with real consequences for your action. Your mommy and daddy won't help you if you break the law. And as a teenager, you should shut the hell up, you farking retard. You simlple ass moron.

Are you actually proud of your ignorance? Well no point asking that since he's too stupid to realize it.

What a shame, this lump of crap is alive while kids are dying in third world country!

After carefully thinking this over, I think you can sell your iTunes downloaded song. But you are buying the AAC code. There is nothing in the Apple's License that states that Apple is responsible for the music to play on any other machines then your's and 3 other Macs.

If you sell it, you, George, is responsible for it. So I don't think Apple is under any obligation here, if it doesnt work on anyones machine, its George's responsibility.

And if you burn a copy on a CD, thats for personal use only. So you'll be breaking the law there.

That my take on it.

George,
As far as trasferring the song *while* following eBay rules regarding selling downloads:

1. Send the person a written bill of sale and a one-page "Agreement to transfer all rights and ownership to this particular iTunes song" via snail mail.

2. Once you receive the countersigned agreement back allow the person to download the actual file off your machine.

The money transfered over eBay then becomes consideration for a contract to transfer your rights to the song, and hence you're not actually selling just downloaded data.

Of course, IANAL and this isn't legal advice.
-Rob

Perhaps you can transfer the file over a direct modem dial-up from the purchaser's machine to your machine. That wouldn't seem to go against eBay's rule against transfer over the Internet.

Way to go .....

BTW, you may very well already have your *own* independent music sharing service. It's called /usr/sbin/httpd

Watch our for eBay's "fee avoidance" policy!

You say "I'm fine with the winner donating directly to the EFF, but may request some money to cover the cost of the eBay auction if it gets too out of hand and I can't afford it."

I think you should retract this. eBay cares deeply about its auction fees, which are based on a percentage of the high bid, and intensely dislikes any sort of arrangement whereby an item is sold on eBay for a falsely low price with a side understanding that the buyer will pay the seller an additional sum. They call this "fee avoidance" and is a good way to get NARU-ed (kicked off eBay) if it is brought to their attention.

I realize the sum isn't being paid to you, but being donated to the EFF, but the situation is getting complicated enough without bringing eBay into the picture unnecessarily. When eBay does act, it tends to be peremptory and not very discriminating. For example, simply mentioning the phrase "CD-R" in a music auction is likely to get the auction terminated--even if the wording is something like "this is an original CD, not a CD-R copy." (And, yes, you're wise not to try to supply your song on recordable media even though their policy appears to permit this under special cases...)

You may not care that much about being kicked off eBay, but the result might be your auction not being completed, which would ruin, or at least complicate, your interesting legal experiment.

Apple would be smart to ignore this whole mess. If they just let it go then they will save themselves a lot of headaches. They don't need to set up any precedents or get tied up in legal battles that could cost millions and change their whole operating strategy. If they ingore this, the problem will go away. This problem will be addressed somewhere, but it can wait. It is several years off before there is any appreciable amount of copywritten work that is not in hardcopy form. Until it is more prevelent, the issue of transferring rights is small potatoes because minimal revenue will be lost from such transactions. What does Apple have to gain in the next 36 months if they were to acknowlege this is an issue? Nothing! They will not sell less songs because people have this ability.

Don't let the negative talk about what your doing get you down man - I think it's a great test to see what happens when you try to resell something you legally own, even though it's in a digital format. All I hope for is if a lawsuit does occur, the highest bidder was an attorney and he does some pro bono work for you! Good luck and keep us updated!

...Because of limitations to iTunes Music Store, this song cannot be shipped outside of...

you agree with itunes-limitations, so, where is the problem?

gratulations for using a mac!

It is not a good test because it violates both Apple and Ebay terms.

It is clearly illegal, and proves nothing.

It may convince music service companies improve the wording of their terms so even this idiot can understand.

GREAT WORK, HELPING THE RIAA

Two things:

1) There is another ebay auction for an iTunes song. It's a shorter auction, so it will end before the Double Dutch Bus auction does.
http://cgi.ebay.com/ws/eBayISAPI.dll?ViewItem&item=2555862144

2) One way to complete the transaction is for you to put the song directly on to the buyers iPod.

Wow... I looked at the auction, clicked the link to see the bids listes, and all of a sudden it was invalid. I clicked back, and once again invalid. Damn eBay... oh well.

uh oh: "The item you requested ( 2555673237 ) is invalid, still pending, or no longer in our database."

It doesn't have to be sent electronically via the internet. Move the file to a keychain microdrive and mail it to the winner. You don't have it any more because you moved the original to a different drive. No copying issues!

what about these auctions? They definatly violate Ebay's policy....

one
or
Two
or
Three

Told you it was illegal

So report them, that is how ebay works.

The 15 minutes is over, you lose.

Damn! This was interesting!

Here's hoping you can get the auction back up. 3B4Y SuX0Rz!!1!!!!ONE

It is not interesting it is stupid.

It would be interesting if it was legal and had a chance of working

You might be able to make the case that your auction didn't violate the downloadable music policy.

* A copy of a software program which the successful high bidder can download from your Web site
* Music or video files that you will deliver through a peer to peer file-sharing community or network
* A copy of a downloadable eBook
* A secret URL address where the high bidder can download "freeware" or "shareware" software programs

And it looks to me like you're offering none of those things. While it is a file, it is a legitimate, legally owned file that you are willing to deliver via methods other than just putting up on a website.

Maybe if you said you'd ship a CD with the file burned onto it, eBay might accept that...

Then apple will cancel it because it violates the iTunes terms.

This is clearly illegal in every way.

Just because ebay removed it does not make it illegal.

It may in fact be illegal, but ebay has a history of removing auctions for flimsy reasons.

Dr. Davis, you sir are an ass. (see post @ 3:44 pm)

George is trying to prove a valid point in that the sale and transfer of ownership of a legally obtained elecronic version of music should be treated no differently than a store bought compact disc or other such legally obtained physical media.

The law is all about interpretation. Don't kid yourself. Geroge is trying to prove that the law can be interpreted to allow such transfer of rights from one individual to another for non-physical media.

George, you keep forging ahead. My personal opinion is that the RIAA is totally Screwed with their interpretation of the supposed correlation of CD sales decline and "rampant piracy due to downloading".

Universal music has clearly pointed out with their announcement of lower MSRP for physical media, that they have been charging an artificially inflated price on CD's and Cassettes for years.

The RIAA must come to the realisation that they cannot continue in the old ways of music marketing. Consumers will buy if they feel that they are getting a fair price. Before the introduction of recordable media costing less than $0.25, the common belief was that is was fairly expensive to produce a CD for mass market. If a consumer can buy a CD-R for

Aaron - to sell a CDR on ebay you must be the owner of the copyright for the material on the CD.

This experiment would be more interesting if all the ebay terms were followed. Then the ball would be in Apple/RIAA's court. IIRC the RIAA is a vero member and can cancel the auction on their own.

Rob's advice is good and I believe follows the terms for an ebay sale - something tangible must be transferred between the seller and buyer.

Also, the email you get from ebay regarding the cancellation should have a link or email address that you can request for information regarding the cancellation. If you re-list make sure you follow their terms. Failure to correct listing violations can get you NARU.