September 03, 2003

Does the Right of First Sale Still Exist?

I just posted an eBay auction for a song I bought from the iTunes music store. It should be interesting to see how this works out. I only spent $0.99 on it but I bought the song just as legally as I would a CD, so I should be able to sell it used just as legally right?

[Update 09-05-2003 2:17 PM]: Did anyone happen to grab a list of the bidders? I want to get in touch with legitimate bidders, if you were one please contact me. [OK, I got one, thanks!]

[Update 09-05-2003 8:42 AM]: Just so there wouldn't be any hard feelings between us I decided to buy something on eBay.

[Update 09-04-2003 5:51 PM]: HTML Archive, courtesy Become The Media.

[Update 09-04-2003 3:02 PM]:
My GPG signed response:
I do not believe that my auction violates the downloadable media policy, I posted in my auction that I would not be violating it. I specifically ammended [forgot to run ispell] the auction to state that the buyer would not receive the item in question over the Internet.

Please reinstate my auction ASAP.

George Hotelling

[Update 09-04-2003 2:52 PM]:
Dear George Hotelling (me@mydomain.tld)

**PLEASE READ THIS IMPORTANT EMAIL REGARDING YOUR LISTING(S)**
We would like to let you know that we removed your listing(s):

2555673237 Double Dutch Bus by Devin Vasquez

for violating our Downloadable Media Policy. Please read our Downloadable Media Policy here:

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

We have credited any associated fees to your account. We have also notified the bidders that the listing(s) was removed, and that they are not obligated to complete the transaction.

If you relist this item, or any other item that violates eBay policy, your account could be suspended.

If you believe your listing was removed in error, please let us know by replying
to this email with supporting information.

Thank you for your cooperation.

Respectfully,

Customer Support (Trust and Safety Department)
Ebay Inc.
\
[Update 09-04-2003 12:08 PM] I'd like to apologize to eBay user shopatbanks for erroneously canceling his bid. While trying to weed out the fake bidders, I removed him as well. He says he was committed to his bid and I thank him for trying to put his money where my mouth is. Now if I can just find the guy who bid $99 million to see if he's legit...

[Update 09-03-2003 7:44 PM] Please don't bid unless you are willing to pay the money. While this is an interesting auction, it is certainly not a joke - that's the whole point. I'm fine with the winner donating directly to eBay the EFF [typo or freudian slip?], 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. [The cost of the auction is a function of the ending price, which is why I want to see legitimate buyers only. eBay will get its cut, unless they waive auction fees when the profits go to non-profits.]

[Update 09-03-2003 4:21 PM] I have about one good idea a year. I hope this was it.

[Update 09-03-2003 11:25 AM] A very excellent comment below by Piggly Wiggly asks if I will convert the format for delivery. My answer right now is "no" because I don't want to cloud the issue of the sale by changing the format. Also, I'd like to thank all the people posting supportive comments who realize that this is about more than a $0.99 song being over-valued on eBay.

[Update 09-03-2003 11:25 AM] I'd like to respond to a few points made by people:
1. It's true that I'm seeking attention, but not for me personally. This is an experiment in property rights in the digital age, something that's gotten surprisingly little attention.
2. I've read the iTunes agreements and found nothing denying transferability. This isn't any more a commercial venture than selling CDs at the local music store, I'm not incorporated or even DBA. Furthermore, in case anyone thinks this is a cheap way to make a buck I will be donating all profits to the EFF.
3. When the song is successfully transferred, I will not be keeping a copy of the song. If I don't own it I shouldn't have a copy.

[Update 09-03-2003 10:08 AM] Right now I've come up with a couple ways that the transfer of ownership could take place. One is to call up Apple and ask them to do it for me, which would be an interesting call. The other way would be to give my account to the winning bidder, which doesn't seem like a bid deal considering that I've only purchased one song. Still, I'd have to make sure that my credit card info was completely disassociated with the account. Or I could just create a new account and repurchase the song on that account.

Posted by george at September 3, 2003 12:20 AM
Comments and TrackBacks

TrackBack URL: http://mt.gnerd.net/mt-gnerd-tb.cgi/89

Reselling iTunes
Excerpt: George Hotelling is trying to sell an iTunes AAC music file at eBay....
Read the rest...
Trackback from: hebig.com at September 3, 2003 03:23 AM
Reselling AAC files from Apple's Music Store
Excerpt: George is conducting an experiment on the ownership rights of downloaded music. Specifically, purchased AAC files from Apple's music store. You can bid on his AAC file on eBay, but be forewarned that he only payed 99 cents for...
Read the rest...
Trackback from: RoboRanch Blog at September 3, 2003 09:59 AM
Man puts Apple on spot, attempts to re-sell iTune ditty
Excerpt: ASKING whether the right of first sale exists with iTunes as it does with CDs, a person is attempting to resell a tune he bought from Apple on Ebay.
Read the rest...
Trackback from: The Inquirer at September 3, 2003 11:02 AM

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?

Posted by: dave at September 3, 2003 11:15 AM
Idiot tries to auction an iTunes Music Store Song
Excerpt: This guy, who must begging for attention, seems to have no concept of how the iTunes Music Store and the aggreement with Apple work.
Read the rest...
Trackback from: The Citizen at September 3, 2003 11:19 AM

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

Posted by: Than at September 3, 2003 11:23 AM

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.

Posted by: The Citizen at September 3, 2003 11:24 AM

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

Posted by: Stephen at September 3, 2003 11:25 AM

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.

Posted by: Davidissimo at September 3, 2003 11:33 AM

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.

Posted by: Mad William Flint at September 3, 2003 12:20 PM

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

Posted by: Jaz at September 3, 2003 12:37 PM

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.

Posted by: Corey Miller at September 3, 2003 12:55 PM

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.

Posted by: slytle at September 3, 2003 01:50 PM

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.

Posted by: Sack at September 3, 2003 02:08 PM

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.

Posted by: I.P. Freely at September 3, 2003 02:25 PM

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

Posted by: Stephen at September 3, 2003 02:27 PM

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

Posted by: Robert Dodson at September 3, 2003 02:39 PM

Re: Robert Dodson

Can a computer be "unauthorized?"

Posted by: joemono at September 3, 2003 02:41 PM

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.

Posted by: Voltiare at September 3, 2003 02:42 PM
Right of first sale?
Excerpt: So... you buy a CD. Grow tired, sell it back to Amoeba (then maybe you buy another). This activity is legal, and reasonable. George bought a single off the iTunes music store. The song didn't live up to his expectations....
Read the rest...
Trackback from: Richard Ault - Weblog at September 3, 2003 02:49 PM

You can unauthorize a computer.

Posted by: Stephen at September 3, 2003 02:49 PM

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

Posted by: Richard at September 3, 2003 02:53 PM
The next eBay overnight sensation has been born
Excerpt: George is having a sale. This guy is selling on eBay an item he purchased on iTunes. My prediction: Apple will revise its DRM policy and this event will be nothing more than another Internet sensation, although a bit more...
Read the rest...
Trackback from: the humdrum at September 3, 2003 02:53 PM

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!)

Posted by: Piggly Wiggly at September 3, 2003 03:05 PM
Reseller Rights on the iTunes Music store
Excerpt: When SJ announced the iTunes music store, he claimed with much fanfare that it was the first service that allowed the user to "own" the music. While this was most likely marketing drivel, it brings up an interesting point. When...
Read the rest...
Trackback from: Sugam was Here at September 3, 2003 03:08 PM
First sale and the iTunes Music store
Excerpt: "This is an experiment in property rights in the digital age, something that's gotten surprisingly little attention." An intrepid netizen...
Read the rest...
Trackback from: Pressepapiers.net at September 3, 2003 03:16 PM

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?

Posted by: anonymous at September 3, 2003 03:24 PM

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.

Posted by: anonymous at September 3, 2003 03:29 PM

Prepare to be slashdotted in about 5 minutes...

Posted by: Anonymous Coward at September 3, 2003 03:51 PM

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.

Posted by: Xaoswolf at September 3, 2003 03:57 PM
Your Rights Online: Testing The Right To Resell Downloaded Music
Excerpt: TITLE: Your Rights Online: Testing The Right To Resell Downloaded Music URL: http://yro.slashdot.org/article.pl?sid=03/09/03/1823202&mode=thread&tid=103&tid=141&tid=188&tid=99 IP: 213.114.165.31 BLOG NAME: Slashdot DATE: 09/03/2003 04:04:23 PM
Read the rest...
Trackback from: Slashdot at September 3, 2003 04:04 PM

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...

Posted by: Sithanas at September 3, 2003 04:07 PM

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?

Posted by: IKNOWBEST at September 3, 2003 04:09 PM

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.

Posted by: michaeltoe at September 3, 2003 04:09 PM

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.

Posted by: won'twork at September 3, 2003 04:13 PM

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.

Posted by: Crymson at September 3, 2003 04:17 PM

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?

Posted by: Luke at September 3, 2003 04:19 PM

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.

Posted by: Brian at September 3, 2003 04:20 PM

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.

Posted by: willb at September 3, 2003 04:20 PM

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

Posted by: Luke at September 3, 2003 04:22 PM

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.

Posted by: Vishal Kapoor at September 3, 2003 04:29 PM

Awesome man!

Posted by: Ceph at September 3, 2003 04:34 PM

> 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.

Posted by: John Doe at September 3, 2003 04:34 PM

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.

Posted by: Vishal Kapoor at September 3, 2003 04:38 PM

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

Posted by: tool462 at September 3, 2003 04:39 PM

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

Posted by: Dan Berger at September 3, 2003 04:41 PM

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.

Posted by: Louis at September 3, 2003 04:43 PM
DRM Resale
Excerpt: As linked by Slashdot, this guy is attempting to resell a song purchased on the iTunes Music Store via eBay (the auction in question is here). This is an interesting test of DRM legal limits, though I doubt the sale...
Read the rest...
Trackback from: Goatblog v1.4 at September 3, 2003 04:43 PM

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...

Posted by: Anonymous Coward at September 3, 2003 04:44 PM
Interesting Experiment: Reselling a digital good
Excerpt: George Hotelling is attempting an interesting experiment for the digital age: reselling a song bought on the Itunes music store.
Read the rest...
Trackback from: TNL.net Weblog at September 3, 2003 04:45 PM

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

Posted by: me at September 3, 2003 04:45 PM
guy trying to sell iTunes song on ebay!
Excerpt: this guy is trying to sell a song he bought on itunes, for 0.99c, on ebay. i just checked and there are a total of 69 bids and its up at $350! pretty mad....
Read the rest...
Trackback from: LSN Blog at September 3, 2003 04:46 PM
Picking Away at the RIAA
Excerpt: He may be ridiculed for it by the comments on his website, but I give a big shout-out to George Hotelling, who has bought a track from iTunes and then put it on eBay to re-sell it. He doesn't want...
Read the rest...
Trackback from: Leaking Pure White Noise at September 3, 2003 04:55 PM

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.

Posted by: holycrap at September 3, 2003 04:55 PM

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.

Posted by: piffy at September 3, 2003 04:55 PM

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

Posted by: michaeltoe at September 3, 2003 04:59 PM
Selling iTunes
Excerpt: Gotta keep an eye on this!...
Read the rest...
Trackback from: Programmer Extreme at September 3, 2003 04:59 PM

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 :)

Posted by: Pablo Mayrgundter at September 3, 2003 05:00 PM

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.

Posted by: DecimalThree at September 3, 2003 05:02 PM

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.

Posted by: Nick Wilson at September 3, 2003 05:03 PM

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

Posted by: holycrap at September 3, 2003 05:03 PM

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

Posted by: wolfpack at September 3, 2003 05:07 PM
Does the Right of First Sale work with songs bought using iTunes?
Excerpt: In an interesting move, George of 90% Crud is trying to sell a song bought using iTunes on eBay. Nothing...
Read the rest...
Trackback from: webgraphics at September 3, 2003 05:08 PM

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.

Posted by: Tim Dierks at September 3, 2003 05:12 PM
DRM license transfer...
Excerpt: Let's see what Apple has to say about reselling music from the iTunes Music Store on eBay. I wonder how long the auction will last before it gets canceled....
Read the rest...
Trackback from: Inert Ramblings at September 3, 2003 05:13 PM

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

Posted by: decimalthree at September 3, 2003 05:13 PM
Does the Right of First Sale work with songs bought using iTunes?
Excerpt: In an interesting move, George of 90% Crud is trying to sell a song bought using iTunes on eBay. Nothing...
Read the rest...
Trackback from: webgraphics at September 3, 2003 05:15 PM

Duke Law on the Right of First Sale:

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

Posted by: Pablo Mayrgundter at September 3, 2003 05:19 PM

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

Posted by: mark at September 3, 2003 05:23 PM

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 ?

Posted by: red82 at September 3, 2003 05:23 PM

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

Posted by: CAPSLOCK2000 at September 3, 2003 05:28 PM

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.

Posted by: tim at September 3, 2003 05:29 PM

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.

Posted by: cve at September 3, 2003 05:30 PM
Auctioned for a Song
Excerpt: If you buy a digital music file from the iTunes Music Store, do you still have the right to sell...
Read the rest...
Trackback from: grapefeed at September 3, 2003 05:32 PM

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

Posted by: Tristan Louis at September 3, 2003 05:36 PM

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.

Posted by: cve at September 3, 2003 05:36 PM

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.

Posted by: Jared at September 3, 2003 05:42 PM
2nd hand itunes for sale...
Excerpt: this guy has decided to try and see sell a song he purchased on Apple's iTunes on eBay. All proceeds to the EFF. He's either brave or stupid - time will tell. It's interesting - this could either turn into...
Read the rest...
Trackback from: h4xx0r* at September 3, 2003 05:46 PM

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 :)

Posted by: scosol at September 3, 2003 05:48 PM

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.

Posted by: Christian at September 3, 2003 05:49 PM

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.

Posted by: switcha at September 3, 2003 05:51 PM

the ebay auction is now at over 20000 USD!!

Posted by: chris at September 3, 2003 05:54 PM

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.

Posted by: Chef Quix at September 3, 2003 05:58 PM

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.

Posted by: Matt at September 3, 2003 05:59 PM

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

Posted by: tim at September 3, 2003 06:00 PM

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?

Posted by: William Russell at September 3, 2003 06:03 PM

Now >this

Posted by: S. Gern at September 3, 2003 06:09 PM

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 :/

Posted by: S. Gern at September 3, 2003 06:09 PM
do you really own that song you just bought through iTunes?
Excerpt: some guy has decided to try and sell a song that he legally bought off of apple's iTunes. He placed an auction on eBay detailing the item and the terms of the sale.
Read the rest...
Trackback from: livejournal -- piffy at September 3, 2003 06:14 PM

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

Posted by: Jim at September 3, 2003 06:20 PM

fart

Posted by: fart at September 3, 2003 06:22 PM

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

Posted by: Kcroy at September 3, 2003 06:23 PM
Reselling a Digital Music File?
Excerpt: I just came home and saw on Slashdot that this guy named George is trying to sell a song he downloaded from iTunes on eBay. Reading through the discussion on George's blog, he may get shut down by eBay simply...
Read the rest...
Trackback from: Snozberry at September 3, 2003 06:49 PM
2003 September 3 PM
Excerpt: This should be an interesting test of the first sale doctrine: Does the Right of First Sale Still Exist? (Slashdot discussion: Testing The Right To Resell Downloaded Music)
Read the rest...
Trackback from: Furdlog at September 3, 2003 06:50 PM

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.

Posted by: TRRosen at September 3, 2003 06:59 PM

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.

Posted by: James at September 3, 2003 07:04 PM

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?

Posted by: michaeltoe at September 3, 2003 07:07 PM

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.

Posted by: michaeltoe at September 3, 2003 07:10 PM

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.

Posted by: crouton at September 3, 2003 07:13 PM

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.

Posted by: Brian at September 3, 2003 07:22 PM

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...

Posted by: javadan at September 3, 2003 07:28 PM
Here is a VERY interesting eBay auction...comments???
Excerpt: Interesting eBay auction
Read the rest...
Trackback from: UNMODERATEDmonsterseekersREDUX at September 3, 2003 07:38 PM

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.

Posted by: kdb003 at September 3, 2003 07:41 PM

wierd...back down to 800 some now

too bad i cant edit my post

Posted by: kdb003 at September 3, 2003 07:43 PM
http://www.nyc99.com/weblog/000633.html
Excerpt: 90% Crud: Does the Right of First Sale Still Exist?...
Read the rest...
Trackback from: nyc99 at September 3, 2003 07:53 PM

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.

Posted by: Hugh Jass at September 3, 2003 07:53 PM
Is it legal to sell digital goods?
Excerpt: George tries to sell a song, he legally bought from the iTunes music store, on
Read the rest...
Trackback from: muesli's Blog at September 3, 2003 08:04 PM

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.

Posted by: Neonight at September 3, 2003 08:07 PM
Testing Ownership of Digital Music
Excerpt: Let's pretend we are deeply naive for a second: when you buy a CD, are you buying the music it contains? Or an aesthetically value-added material object that enables you to access the music? i-Tunes (and other online digital music outlets) would prefer...
Read the rest...
Trackback from: Creativity Machine at September 3, 2003 08:07 PM

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? =)

Posted by: Faery at September 3, 2003 08:50 PM
"Digital Property Rights?"
Excerpt: George Hotelling, a common Joe, is testing the limits of digital media laws by offering an iTunes AAC .m4p music file he purchased for $0.99 on Apple's iTunes service, on eBay's auction site.
Read the rest...
Trackback from: DarkNebula at September 3, 2003 09:17 PM

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.

Posted by: Ian at September 3, 2003 09:22 PM

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

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.

Posted by: michaeltoe at September 3, 2003 09:31 PM

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.

Posted by: Dr Davis at September 3, 2003 09:51 PM
Just for the kicks of it, it would seem
Excerpt: What do you do when you want to sell an iTunes Music Store AAC song? George is going to find out. As of 6:48 p.m. Wednesday, the auction was up at $860, for a 99¢ song. Wow. The intent, though,...
Read the rest...
Trackback from: The Idea Salon at September 3, 2003 09:53 PM

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

Posted by: charkins at September 3, 2003 10:02 PM

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.

Posted by: bbyrne at September 3, 2003 10:10 PM
Does the Right of First Sale Still Exist?
Excerpt: I tell you what... To be a good scientific test of the process.....
Read the rest...
Trackback from: CLB World at September 3, 2003 10:19 PM

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

Posted by: chris at September 3, 2003 10:20 PM

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!

Posted by: growler at September 3, 2003 10:20 PM

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

Posted by: Steve at September 3, 2003 10:24 PM

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.

Posted by: Andrew at September 3, 2003 10:49 PM

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

Posted by: fred at September 3, 2003 11:30 PM

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.

Posted by: Rhythm Rhyme Checka at September 3, 2003 11:58 PM
selling digital music
Excerpt: In an interesting legal test, a Michigan man is selling a track he purchased from the iTunes Music Store on eBay. In a posting to his weblog, George Hotelling writes: Does the Right of First Sale Still Exist? I just...
Read the rest...
Trackback from: rants and ramblings at September 4, 2003 12:03 AM
Who knew?!
Excerpt: Who knew that buying an Apple iTunes Music Store digital music file could have netted such a profit by reselling it on eBay?? Thanks to CNet for their ,a href="http://news.com.com/2100-1025_3-5071108.html?tag=fd_top">story on the event. Just take a loo...
Read the rest...
Trackback from: jay Is at September 4, 2003 12:09 AM

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.

Posted by: Chris at September 4, 2003 12:11 AM

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?

Posted by: ehoff at September 4, 2003 12:12 AM

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.

Posted by: jay at September 4, 2003 12:29 AM

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.

Posted by: teh0mega at September 4, 2003 12:36 AM
Testing the legal boundaries of the AAC format
Excerpt: My boyfriend George is winning his 15 minutes of internet fame with his latest argument: "I just posted an eBay auction for a song I bought from the iTunes music store. It should be interesting to see how this works...
Read the rest...
Trackback from: DIFL ? at September 4, 2003 12:48 AM

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 :)

Posted by: True at September 4, 2003 02:15 AM

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.

Posted by: anonymous at September 4, 2003 02:24 AM

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

Posted by: lurker at September 4, 2003 03:53 AM
While on the Subject of doing odd things with Apple Products...
Excerpt: This guy is selling an iTunes song on eBay. Since the agreement for iTunes doesn't deny transferability, he should be able to do this. I wish him luck. The other side of this is that the auction is up to sixteen grand. This scares me. Either s...
Read the rest...
Trackback from: Particle Board at September 4, 2003 04:02 AM

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 :)

Posted by: Alsee at September 4, 2003 04:29 AM

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

Posted by: JJ at September 4, 2003 05:14 AM

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.

Posted by: bri at September 4, 2003 06:40 AM

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.

Posted by: Sharrow at September 4, 2003 07:04 AM

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

Posted by: Marc Lane at September 4, 2003 07:53 AM
Does the Right of First Sale Still Exist?
Excerpt: George Hotelling off 90% Crud is testing whether you really "own" music purchased at iTunes or not by selling a tune on eBay. Beside being an interesting experiment and massively...
Read the rest...
Trackback from: pollas.dk at September 4, 2003 08:04 AM

An interesting question.

A worthy fight.

Good Luck !!!

justed

Posted by: justed at September 4, 2003 08:06 AM

Very interesting will keep an eye on how it develops.

bakerman (ger)

Posted by: bakerman at September 4, 2003 08:24 AM

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?

Posted by: netgodcretin at September 4, 2003 08:24 AM

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!

Posted by: Luke Wells at September 4, 2003 08:27 AM

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?

Posted by: mkDawg at September 4, 2003 08:41 AM
$16,000 to prove a point?
Excerpt: Apparently, the legal system is going to be shook up with regard to some kind of decision on this eBay auction. While we're all hyped up about this today I think it's going to end up the same as the Skylarov case, Napster going down and Amazon's 1-clic...
Read the rest...
Trackback from: {moon.drop} at September 4, 2003 09:25 AM

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

Posted by: Andrew at September 4, 2003 09:56 AM

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.

Posted by: anonymous at September 4, 2003 09:57 AM
eBay item 2555673237 (Ends Sep-09-03 21:16:24 PDT) - Double Dutch Bus by Devin Vasquez
Excerpt: Apple's iTunes is put to the test .
Read the rest...
Trackback from: Steve Hooker's Radio: kids, war, blogs, gadgets at September 4, 2003 10:31 AM

"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!

Posted by: I see Idiot at September 4, 2003 10:35 AM

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.

Posted by: I.P. Freely at September 4, 2003 10:41 AM
iTunes raises legal questions
Excerpt: TITLE: iTunes raises legal questions URL: http://www.joetek.com/archives/2003_09.php#000111 IP: 205.210.252.10 BLOG NAME: Joetek.com DATE: 09/04/2003 10:50:11 AM
Read the rest...
Trackback from: Joetek.com at September 4, 2003 10:50 AM

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

Posted by: Rob at September 4, 2003 11:29 AM

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.

Posted by: Edmund at September 4, 2003 11:31 AM
Dollars, Cents and Downloads
Excerpt: Can you resell a downloaded file purchased from iTunes? George Hotelling hopes to find out if the right of first sale still exists, by auctioning a single song, "Double Dutch Bus," on eBay. The auction violates eBay's terms of use....
Read the rest...
Trackback from: Andrew Raff: Shameless Self Promotion at September 4, 2003 11:34 AM
A sticky situation
Excerpt: Since eBay prohibits the sale of downloadable media, I wonder how a person can complete an auction of a music track from iTMS? Apparently, George Hotelling, the seller, is counting on the fact that since he's the owner of the...
Read the rest...
Trackback from: Considering... at September 4, 2003 11:35 AM

Way to go .....

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

Posted by: ajs at September 4, 2003 12:16 PM

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.

Posted by: dpbsmith at September 4, 2003 12:22 PM
iWant iTunes Music Store
Excerpt: 90% Crud: Does the Right of First Sale Still Exist? It's interesting what debates a simple little experiment like this can stir up. I mentioned this during lunch and conversation raised some interesting points. Such as, what is it you
Read the rest...
Trackback from: Blank[]Page at September 4, 2003 12:25 PM
Sell your songs
Excerpt: George is auctioning a song he bought on iTunes. That is an experiment in transferability, and of course, having achieved...
Read the rest...
Trackback from: Mercurial at September 4, 2003 12:27 PM

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.

Posted by: LawyerTom at September 4, 2003 12:29 PM
Testing the right of first sale.
Excerpt: Man buys song from iTunes music store for 99¢. Man tests bounds of legal ownership in the digital age by turning around and selling said song on ebay. Man declares that all proceeds from the auction will go to the EFF The masses aparently approve of t...
Read the rest...
Trackback from: MintChaos: Transition^2 at September 4, 2003 01:44 PM
Testing the right to resell online music.
Excerpt: From this SlashDot story I was referred to a link about a gentleman attempting to resell an iTunes purchased song on Ebay. The link to the auction is here, auction number 2555673237. As of right now (12:45pm CST, September 4th)...
Read the rest...
Trackback from: Pavleck.Com at September 4, 2003 01:57 PM

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!

Posted by: Jeremy at September 4, 2003 02:01 PM
Zing! Ernie, JD Nails iTunes Music Resale Efforts
Excerpt: George Hotelling, blogger and web designer, recently decided to test the limits of the Apple iTunes Store license by selling a single downloaded track on eBay. Proceeds from the auction, which eBay removed, were to be donated to the Electronic...
Read the rest...
Trackback from: Runons at September 4, 2003 02:05 PM

...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!

Posted by: user_79 at September 4, 2003 02:20 PM
Testing the legality of Apple's iTunes Music Store using eBay? Bad idea.
Excerpt: C/Net has this story about a fellow who is using eBay to begin a bizarre challenge to Apple's iTunes Music Store. Here's the story:
Read the rest...
Trackback from: Ernie The Attorney at September 4, 2003 02:28 PM

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

Posted by: Dr Davis at September 4, 2003 02:46 PM

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.

Posted by: tuc at September 4, 2003 02:48 PM

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.

Posted by: Kris at September 4, 2003 03:07 PM

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

Posted by: tuc at September 4, 2003 03:10 PM

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!

Posted by: Shawn at September 4, 2003 03:14 PM

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

one
or
Two
or
Three

Posted by: Shawn at September 4, 2003 03:18 PM

Told you it was illegal

Posted by: Dr Davis at September 4, 2003 03:23 PM

So report them, that is how ebay works.

The 15 minutes is over, you lose.

Posted by: Dr Davis at September 4, 2003 03:36 PM

Damn! This was interesting!

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

Posted by: Syco at September 4, 2003 03:40 PM

It is not interesting it is stupid.

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

Posted by: Dr. Davis` at September 4, 2003 03:44 PM

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...

Posted by: Aaron at September 4, 2003 03:47 PM

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

This is clearly illegal in every way.

Posted by: Dr Davis at September 4, 2003 03:59 PM
Going, going, gone
Excerpt: eBay cancelled his auction, but George states on his blog that he has submitted an appeal, so the auction might actually revive. I got a lot of incidental hits to my blog as a result of pinging his thingy, which...
Read the rest...
Trackback from: the humdrum at September 4, 2003 04:17 PM

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.

Posted by: tuc at September 4, 2003 04:23 PM

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

Posted by: Chris at September 4, 2003 04:26 PM

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.

Posted by: td at September 4, 2003 04:26 PM

FYI..........


Invalid Item

The item you requested ( 2555673237 ) is invalid, still pending, or no longer in our database. Please check the number and try again. If this message persists, the item has either not started and is not yet available for viewing, or has expired and is no longer available.

Posted by: Fabian Lamaestra at September 4, 2003 04:30 PM
http://www.becomethemedia.com
Excerpt: The right of first sale allows us to resell a legally purchased CD without permission from the copyright owner. But does the same hold true for music files legitimately downloaded from an online store such as Apple's iTunes Music Store?
Read the rest...
Trackback from: become the media at September 4, 2003 05:33 PM

Found a HTML archive version of your eBay auction. It's at http://www.becomethemedia.com/news/eBay_iTunes_auction/eBay_iTunes.htm.

Posted by: anonymousHoward at September 4, 2003 05:39 PM
it was my damned $.99, now its my damned property. dang it.
Excerpt: ringy-ding-ding. . . Selling your itunes music on ebay? Interesting. (and good for you mr. man)...
Read the rest...
Trackback from: :: :: About A Medium Bear :: :: at September 4, 2003 05:41 PM

Here's another HTML version: http://www.exclupen.com/misc/itunesauction/

It's a couple of hours more recent than becomethemedia's, with a slightly higher bid price.

Posted by: Marshall at September 4, 2003 05:57 PM

And now eBay, as expected, have pulled the plug.

Posted by: Tyrall at September 4, 2003 06:36 PM

Apologies for the redundant statement, it appears I was looking at a cached page. Kudos to those who provided a snapshot.

Posted by: Tyrall at September 4, 2003 06:38 PM

Put it up for auction on your own site. That'll foil the old eBay problems!

Posted by: Tom Morris at September 4, 2003 07:44 PM
Does the right of first sale still exist?
Excerpt: Here's someone who bought an (encrypted) iTunes song from Apple and is selling it on eBay. He wonders: Does the right of first sale still exist?
Read the rest...
Trackback from: JD's New Media Musings at September 4, 2003 08:20 PM

You are selling your right to own the song. Not the song itself. eBay has made a mistake by cancelling your auction and you should be able to recover it or make a new one as you see fit. I think other people should do the same thing as you do just to let them know that we're not willing to be manipulated like that. People are already selling software on eBay, I don't see any difference between software and songs. They both are legit products, be it a single computer file or a complete box with tons of CDs. It still is the same thing. You are not selling a file, you are selling the right to own it.

eBay cancelled your auction by interpretation error - end of story.

Posted by: Vince at September 4, 2003 08:23 PM

Lovin your work George, I can see the stock market headlines of the future now;

Frozen orange juice stocks are down
Digital medium stocks are up; with a significant rise in Jpegs, Tiffs and Mp3s
RIAA stocks at an all time low

And in other news, Tower records and HMV close the last of their stores due to years of over priced products

Posted by: James Bradders at September 4, 2003 08:25 PM

I salute you, you're question and test of electronic rights are (is?) intriguing at the least. I hope ebay reinstates you're bid, and that you recieve much press about this and your cause.

Posted by: TSGarp at September 4, 2003 08:51 PM

Ebay does not allow downloadable media.

Apple does not allow transfer of itunes songs.

Ebay ended the auction as I predicted.

Chris has his head in the clouds and thinks that his personal feelings have anything to do with the law.

He was trying to sell the file, which he does not have the right to do.

Posted by: Dr Davis at September 4, 2003 09:41 PM

eBay never, ever, "reinstates" auctions. The best you can hope for is that they tell you to go ahead and resubmit it to run again.

I don't recall the exact text of your original auction, so I don't know what you said regarding downloading, but my interpretation was that you were going to have the winner download it. Maybe eBay read it the same way.

You need to make it perfectly clear in the auction exactly how you are going to get it to the buyer. You can't burn it to a CD-R or CD-RW since that violates another eBay policy. Perhaps you could write it to a hard drive and mail the hard drive, or do the same with a memory card. Even though, eBay could slant the rules of their "no recordable media" against you.

You are facing two problems you need to overcome in order to carry out this experiment. The first problem is all the fake bidders. The second is slipping around eBay's net. Here is how you solve these problems.

Run your sale as a fixed price auction with a "buy it now" price of $50 or so. Once your auction is posted, go here to switch your auction to accept pre-approved bidders only. Now wait for someone to contact you who is willing to hold up the other end of this experiment. Once you have a bidder, approve them and let them make the purchase using "buy it now". With any luck, you will have completed a binding sale to a good buyer within an hour of posting your auction.

Posted by: Nick at September 4, 2003 09:56 PM

P.S. I read your original next, and sure enough you specifically offered to provide the file via a "password protected web site" which does indeed violate the eBay policy against downloadable media. Your disclaimer said that you wouldn't break any rules, but you failed to explain how you would actually ship the file.

I'd like to see you use the method I suggested above, but it dawns on me that the heart of your experiment is what happens after the sale, not the sale itself. You've gotten enough attention with this that you could offer it in some venue outside of eBay to find a buyer.

Posted by: Nick at September 4, 2003 10:04 PM

Next time just post something that you have the right to sell.

I bet there are ultra clear rules for transfer in every download service's terms now.

Why does everybody think that they can do whatever they want?

Why are there cheers for someone who did something so counter to a constructive solution?

Posted by: Reality Check at September 4, 2003 10:46 PM

What if you sold the song along with the hard drive it was downloaded on to, or even the whole system?

Lets say you have itunes and all your music instaled on a mem card, then sell that. then the buyer runs itunes off the mem card and played the song. The song never leaves itunes, and is never copyed anywhere.

Posted by: CRFX at September 4, 2003 11:02 PM

I think the question is not whether the agreement made with itunes allows him to re-sell the song he bought but whether companies have a right to dictate to consumers what the product is used for. If I buy a book and want to rip out the pages for use as toilet paper then I believe I have the right to do so. If I then want to put the shit stained pages on my wall as art then I believe I have the right to do so. I personally won't use any of these music services, (or in the future movie services/book services/insert-your-drug-of-choice-here services) until I can use, abuse, resell, give away, whatever the product that I bought. encrypted stuff is a disaster as I see it as the encryption never goes away, even when the copyright has long since expired. not only that, but with the lifespan of formats getting shorter and shorter every time I look around the writing is on the wall, IMHO. I think/hope record companies, as we see them today, are dead in the water.

Posted by: NailedSaviour at September 4, 2003 11:30 PM

i realize this muddies the waters of your experiment but you could sell a piece of paper with your e-mail address on it. Then when the buyer e-mails you you transfer the song to him. It would kind of be like a coupon to get the song.

Posted by: theanswer at September 4, 2003 11:31 PM

Well, I'm an attorney, licensed to practice in the state of Texas and three different federal courts, and I have to agree with Chris. Dr. Davis (aka "Reality Check") is an ass. However, I'd have gone one step further and stated that he's a dumb ass.

Dr. Davis, you have so completely missed the point, it's astounding. How do you think laws and contractual agreements come to be upheld or thrown out by the courts? By people _testing_ them. And that's what George is trying to do. He's _testing_ the validity of the agreement by giving Apple the opportunity to _enforce_ the agreement.

Let's take a more simple example: sodomy laws. For years in Texas and other states, sodomy was illegal. That's right. At that time, if you liked pumping the mud-shute with your mate, you risked criminal prosecution.

The homosexual community tried for years to get these laws removed from the books, and most states responded by reducing the penalty to a fine-only crime (along the lines of a traffic ticket). This kept the politician's bible-thumping supporters happy, and pretty much ensured that no one would challenge the constitutionality of the law. After all, it's far more financially sound to pay a $30 fine than to appeal something all the way to the U.S. Supreme Court - which can literally cost hundreds of thousands of dollars.

Eventually though, along came a law enforcement officer who was so blinded by the law that he couldn't see the forest for the trees, and he arrested some ass-lovers for violating the sodomy laws. And these two took the case all the way to the U.S. Supreme Court. And the U.S. Supreme Court ruled that the Texas sodomy law was unconstitutional.

Now, had that law enforcement officer simply looked the other way (as many, many, many others before him had), or had these two "law breakers" not had the huge cajones to take this to the mat, the law would still be valid. And mud-pumpers throughout Texas would be risking prosecution even as you read this.

But these two ass-lovers _tested_ the validity of the law. And they ultimately won the prize which the homosexual community in Texas had been seeking for decades.

See how it works, Dr. Davis? You _test_ the validity (sometimes called "constitutionality") of a law by _breaking_ it, going to court, losing and appealing the law's validity.

The same logic applies to contractual agreements. You test the validity of the agreement by breaking it, the other party sues, and you eventually get a court ruling on the validity of the agreement.

That's what's going on here. Get it? Can you see it now? Could it be any more plain? He's _testing_ the validity of the terms of service agreement.

Unbelievable ....

Posted by: shock at September 4, 2003 11:46 PM

I noticed a comment on /. suggesting that the file could be printed out as hex and mailed, then the buyer could use OCR to read it back onto his computer. You wouldn't be using CDs or hard drives or memory cards, and wouldn't be violating the recordable media policy, unless eBay considers paper to be recordable now...

Posted by: Marshall at September 5, 2003 01:04 AM
Gebrauchtmusik
Excerpt: Da kauft jemand für US$ 0,99 einen Song über Apples neuen iTunes Music Store. Er gefällt ihm nicht so recht. Und er verkauft ihn wieder, auf ebay, genauso wie andere Leute dort ihre gebrauchten CDs verkaufen. Schließlich hat er für...
Read the rest...
Trackback from: MEX Blog at September 5, 2003 01:08 AM

"Recordable media policy", what a joke. What about bootleg cds and dvds produced by professional piracy outfits? Ebay does nothing to prevent the sale of pirated music, video, or software so long as it's made in Hong Kong and not in Joe Sixpack's living room. The solution is obviously to email the file to bootleggers Hong Kong, who perform the necessary file coversion, stamp it onto a thousand cds, and package those cds in jewel cases with badly photocopied inserts. The cds can then be sent to the US, where eBay will happily allow them to be sold.

Posted by: Josh at September 5, 2003 01:24 AM
Update on thay guy trying to sell itunes song on ebay
Excerpt: on wensday, i posted this post about a Man who was trying to sell a song he bought off Apple Itunes for 99c. bidding actually maxed out at $100,000 according to this register article, but it has been pulled from...
Read the rest...
Trackback from: LSN Blog at September 5, 2003 01:34 AM

Pumping the mud-shute? Ass-lovers? Remind me to never hire a texas lawyer, ever.

Posted by: Brant at September 5, 2003 01:43 AM
iTunes
Excerpt: George Hotelling is pushing the envelope in digital music with his attempt to auction off a song that he purchased on Apple's iTunes Music Store. Hotelling says he's not concerned about recouping his 99-cent investment in Devin Vasquez's rendition of...
Read the rest...
Trackback from: The Daily Irrelevant at September 5, 2003 02:12 AM

artists and rec industry will have to look for
completely new biz concepts anyway.

Reducing prices has been a good first step, but in the long run FANZ will have to become kind
of sponsors / active supporters.

Selling MP3s is pretty much the same as selling
second hand records or CDs.

So no one can stop that.


Uli


web62.com

Posted by: Uli at September 5, 2003 04:24 AM
iTunes Song bei Ebay für 15.000$
Excerpt: Aufsehen erregt hat die Auktion von George Hotelling
Read the rest...
Trackback from: Hannos Daily Thoughts... at September 5, 2003 06:57 AM
Musik-Datei in eBay-Auktion als juristisches Experiment
Excerpt: Mit einer Auktion auf eBay will der US-Amerikaner George Hotelling auf eine juristische Grauzone hinweisen.
Read the rest...
Trackback from: Heise Online at September 5, 2003 07:38 AM

Why don't you relist the auction at Bid4Assets.com?

Posted by: Mark at September 5, 2003 08:41 AM

Your auction is quite interesting. I made a publication in a German legal newspaper last year discussing exactly the question whether the first sale doctrine is working in the context of digital delivery of music tracks. My paper focuses on the European law, but I think the result should be the same in U.S. law: In my opinion your auction was absolutely legal, the first sale doctrine is applicable in the digital context. Dr. Bernhard Knies

Posted by: Dr. bernhard Knies attorney at law at September 5, 2003 09:27 AM

Sorry, when I here the first time of this I asked myself: Is this guy little stupid?
Why?
If you buy Songs in iTunes you need an Apple-ID for this. So you must know every Song that yout buy there is only for one Person (use on 3 Macs)
If you want to sell this Songs, you have to sell the Apple-ID with them too.
If you do this - Ok!
But if not, so you try to share illegal Copys of Music an sell somethin than no one else can use! So you sell crap.
This is illegal too.
Some things you buy today (so not only the Songs in iTunes) are a personal and you cannot easy sell this things to others.

Do you understand this George???

Posted by: zeko at September 5, 2003 09:34 AM
OK to resell a digital file?
Excerpt: iSell .
Read the rest...
Trackback from: cinema minima at September 5, 2003 09:47 AM

George!

Beat EBay at there own game. They say it needs to be a physical sale right? Then put the iTunes song on a CD-R! Then you say that you are selling a CD-R which happens to only contain the song in question. They can't pull the sell of a CD, right? :)

Posted by: Ryan Kime at September 5, 2003 10:02 AM

Geez.....nevermind the CD-R idea, just noticed this:

http://pages.ebay.com/help/index_popup.html?policies=recordable.html

Though you might be able to get away with selling a 16MB USB Flash drive with the file on it. :)

Posted by: Ryan Kime at September 5, 2003 10:10 AM

This is really interesting. My take is that Apple has sold you the AAC file, thus you can resell that AAC file or that sequence of bits. Apple has not sold you anything other than that, so you do not have the right to sell a modified copy.

Should you be resell it, and retain the original bits? Most people would say "no." This is pretty much a violation of copyright law. Aside -- the original artist did not create the exact sequence of bits that you received. Shouldn't that sequence be copyright by both the artist and the encoder (Apple)?

Should you be able to modify it and then resell it, retaining the original bits? Again, most people would say "no" if the modifications were "uninteresting" or "small", say, recompressing it, adding silence or formatting it as an OGG file. Aside -- at some point, you are can claim fair use if you take small enough pieces and modify it enough, but these are slippery slopes.

Should you be able to resell the AAC file exactly as is, and not retain the bits? I think most people would say "yes," but this has two problems. 1) As a society how do we enforce that people do not keep a copy? 2) In this case, the AAC file (IIRC) is "keyed" to George's account and he would need to modify it in order to reasonably sell it.

Finally, this is what George is trying to do: Should you be able to slightly modify the file, in a way which respects the artistic integrity of the original artist, and then destroy the original? Most people would say "yes" but if this is allowed, you might also have to allow the following less reasonable scenarios.

Can you buy a copy of a book, scan and reprint it in another form, destroy the original, and then sell the new one? What about 100 copies?

If you thought iTunes sucked because they sold the music as AAC files, and you though it would be better to sell them as OGG files (or MP3 files) should you be able to buy N copies from Apple, and then sell N copies of the OGG version on the Internet for twice as much?

Posted by: C. Conrad Cady at September 5, 2003 10:12 AM

Why involve eBay at all? Seems to me you've achieved quite the notoriety here; just offer it to someone willing to pay for whatever amount you think is fair.

You'll go a lot further toward establishing the legality of reselling downloaded music; all you've proven with eBay is that it's bloody easy to make eBay skittish (and that's already public knowledge.)

Posted by: Matt Behrens at September 5, 2003 10:12 AM

Given all the press you've gotten for this, I think it'd be a good idea to give a big finger to Ebay, promote underdogs, and continue to test your idea by starting the auction again on an alternative auction site.

Posted by: David Newcum at September 5, 2003 10:32 AM

Alternative auction sites that seem to allow sale of electronic items:

Posted by: David Newcum at September 5, 2003 11:29 AM

C. Conrad Cady - hit it right on the head and never knew it "Can you buy a copy of a book, scan and reprint it in another form, destroy the original, and then sell the new one? " answer NO. The Right of First Sale is attached to the physical media. Selling anything other than the original is basiclly selling a derivitive work and there for not legal. The point here is that APPLE DOES NOT SELL THE SONG, they subliscense certain rights. The ability for YOU and ONLY you to use this file on up to three computer YOU Own.

Unfortunatly the one thing not in question here is that "geoge does not own any resale rights to the song in question". If Apples ITMS contact is valid it is obviuos he cannot sell. If it is not Apple owes him 99¢ but he still doesnt own any rights. an invalid contact would mean there was no sale...not that he magicly has rights no one ever meant him to have. Apple has Liscensed this music and does not have any ownership rights to sell him.

if the contract is not valid he just has the equivilant of a pirated CD even if he paid for it its still illegal for him to sell it.

So for all of you whining about ebay canceling the bid goerge is a criminal engaged in an act of fraud offering for sale and item that he does not own or possess. whether a noble experiment or a dumb idea to get attention it is just the same as me selling the Brooklyn Bridge.

something to think about if there was an actual bidder offering over $1000 George becomes a FELON

Posted by: TRRosen at September 5, 2003 12:46 PM
Interesting experiment:
Excerpt: Does the Right of First Sale Still Exist?. George Hotelling is trying to sell a song he purchased through iTunes at eBay. So far they're not letting him, though it's unclear why not.
Read the rest...
Trackback from: mikel dot org | Michael Boyle's weblog at September 5, 2003 01:16 PM

TRRosen: You are wrong! George does have the right to sell the original file he purchased - purchased to OWN as Steve Jobs says himself - as long as George does not keep a copy. There's no two ways about it. Period! As for the Apple ID associated with the file and how the second owner would listen to the file without the first owner's ID, well that's another issue which there needs to be a solution for.

Steve Jobs said himself that poeple want to OWN their digital music. If I own something I do have the right to transfer ownership to someone else - and there is nothing in Apple's Terms and Conditions that state otherwise.

Posted by: Macvault at September 5, 2003 01:21 PM

Aww, eBay gets too much traffic, so they shut ya auction down.. what is the point in that?

I think they just like screwing people over... how is that auction not legit!?!?

Keep up the fight.

Posted by: True at September 5, 2003 01:30 PM

TRRosen wrote: goerge is a criminal engaged in an act of fraud offering for sale and item that he does not own or possess.

Possess? I'll take that bet. He does possess a copy. He paid for it and has the right to use it on his computer. I see no problem with him selling it to a person. Whether or not it's of any use to the buyer is irrelevant. Kinda like me buying a DVD that doesn't match my region encoding. It won't work on my DVD player, but does that mean I can't buy it?

Don't let the technology cloud the issue. This is very much like buying a single, whether it be cassette, vinyl, CD, or digital. They slapped some tech on it to restrict where it can be played, but that's it. So why should he not be allowed to sell it?

We're only going to see more of this folks. RIAA and MPAA doing more to restrict what we can / cannot do with the products we purchase.

Posted by: steve at September 5, 2003 01:52 PM

Wait a minute...

http://cgi.ebay.com/ws/eBayISAPI.dll?ViewItem&item=2554801917&category=307

Huh?

Why is this one okay, yet George's isn't? Quotes from the listing:

" This CD(s) is created by me from blank CD-R discs. This program is from my personal collection and has never been purchased from a commercial source. My collection has been built through trades and purchases from other Old Time Radio fans from their own private collections. It is my understanding that all material offered for sale here is in the public domain. If this is not so and you hold a legal copyright to anything offered here please send supporting information and I will remove your show from my auction/web site."

My point: this guy is shipping on CD/R; but George can't? Also, his guys "private" collection is probably the same as my "private" collection, parts of which I have been known to make public from time to time....

my $0.02.

Posted by: bigD at September 5, 2003 02:16 PM

FIRST SALE DOES NOT APPLY TO DIGITAL GOODS.

IT IS A STUPID, NOT INTERESTING TEST SEE BELOW

Seth Greenstein, an attorney with the Washington, D.C., law firm McDermott Will & Emory, said a green paper put out by the U.S. Patent and Trademark Office in 1992 found that the first-sale doctrine does not apply to digital goods. The paper authors argued that the doctrine relates to the physical distribution of a work, but that the transfer of digital goods implies making a copy of the work--something that's not explicitly addressed in the doctrine.

That take was reiterated in an analysis of the applicability of the first-sale doctrine to digital goods from the U.S. Copyright Office, a study required as part of the 1998 Digital Millennium Copyright Act.

The study examined the argument that the first-sale doctrine should apply to digital goods, as long as resellers erased their own copy of the work approximately simultaneously with the transfer of the file, a process known as "forward and delete."

"Proponents of expansion of the scope of (the first-sale doctrine) to include the transmission and deletion of a digital file argue that this activity is essentially identical to the transfer of a physical copy and that the similarities outweigh the differences," the study states. "While it is true that there are similarities, we find the analogy to the physical world to be flawed and unconvincing."

Posted by: Dr Davis at September 5, 2003 03:16 PM
90% Crud: Does the Right of First Sale Still Exist?
Excerpt: http://george.hotelling.net/90percent/geekery/does_the_right_of_first_sale_still_exist.php
Read the rest...
Trackback from: Hoder's Linkdooni at September 5, 2003 03:32 PM

An interesting excercise, but why only one track? Why not buy an album from iTunes and then auction it on eBay...

Posted by: Steven at September 5, 2003 08:14 PM

i wonder when the dmca of '98 will be updated or some new laws written about the transfer and deletion of digital computer goods.

Posted by: dave at September 5, 2003 10:38 PM

Dr_Davis writes:

"Seth Greenstein, an attorney with the Washington, D.C., law firm McDermott Will & Emory, said a green paper put out by the U.S. Patent and Trademark Office in 1992 found that the first-sale doctrine does not apply to digital goods."

Is this third-hand legal research? As an FYI, the USPTO does not make copyright law. It is a member of the executive that adopts policy stances towards patent prosecution. The law is made by the legislative and judicial branches. Accordingly, the USPTO's opinion is little more valuable than Greenstein's, which is little more valuable than yours...

Au contraire, this is an interesting test...

Posted by: miles at September 5, 2003 11:48 PM
http://www.sixdifferentways.com/remainder/004875.php
Excerpt: Reselling iTunes...
Read the rest...
Trackback from: Remaindered links weblog at September 6, 2003 04:19 AM
Trust and Safety Department
Excerpt: Go George! Go! This tickles me to no end because it has the potential to cause total chaos. Big business wants to use the net for commerce but they haven't really thought out the implications of trafficking in digital music....
Read the rest...
Trackback from: Dae's Demesne at September 6, 2003 05:56 AM
eBay stoppt Auktion von Musikdatei
Excerpt: Das juristische Experiment des US-Amerikaners George Hotelling auf eBay hat ein jähes Ende gefunden.
Read the rest...
Trackback from: Heise Online at September 6, 2003 08:34 AM

Just because you want it does not make it so.

This poorly designed test just gave the big companies an idea of what to lobby for now. We have no effective lobby and get killed at this point every time.

The tact taken against big companies by the slashdot crowd of testing their legal resolve is just plain dumb.

You can look at the text that the copyright office wrote that was used by congress for the DCMA if you don't believe me.

http://www.copyright.gov/reports/studies/dmca/dmca_study.html

An interesting test would not have 4 0r 5 serious holes, one of which prevents the items from being sold on ebay so ebay can comply with the DMCA. The other being clear rules against transfer between parties in itunes.

We do not have a decent congressional lobby, and that is what is needed to achieve change.

Individuals and their poorly thought out legal solutions are causing trouble, not change.

Posted by: Dr Davis at September 6, 2003 01:14 PM
Curious George
Excerpt: I got a friendly email from Curious George after I responded to his request to get in touch with bidders in his recent auction. He answered a question I had about f.o.a.f. files and later complimented my weather-related theme concept....
Read the rest...
Trackback from: the humdrum at September 6, 2003 04:14 PM

"Dr. Davis", just because you proclaim it to be "stupid, not interesting" does not make it so. Eye of the beholder. (And for someone who proclaims this experiment to be so uninteresting, you appear to have taken quite an interest in it.)

The quotation you cite:"Proponents of expansion of the scope of (the first-sale doctrine) to include the transmission and deletion of a digital file argue that this activity is essentially identical to the transfer of a physical copy and that the similarities outweigh the differences," the study states. "While it is true that there are similarities, we find the analogy to the physical world to be flawed and unconvincing."

Things like this can be challenged. That's part of the function of a court of law. Even law set by precedent of prior court rulings (which this is not; it's merely a study)can be challenged and defeated.

Open your mind.

Posted by: Stephen at September 6, 2003 04:18 PM

Seems like an iTunes resale site wouldn't be that hard to set up and would really test the waters.

Posted by: M at September 6, 2003 08:02 PM

Dr. Davis is just a Troll. Probably works for the RIAA, hired to lick the sweat off the balls of the new chairman and CEO Mitch Bainwol.

Posted by: name at September 6, 2003 08:49 PM

Explain to me what is "Interesting" about testing something that you already know the answer to?

What is needed is a decent lobby for congress (The EFF loses ever battle they take on, so I don't currently view them as a viable lobby group)

If you want to resell digital works, then they need to be included in the first sale rules. Posting songs on ebay proves nothing positive and allows the music companies additional examples that prove that resale is wrong.

Call me all the names you want, I have nothing to do with the RIAA, and I still think this is a poorly thought out way to achieve first sale rights for purchased digital works.

Posted by: Dr Davis at September 6, 2003 09:56 PM

I guess the real issue will only come to terms in a court of law, which won't happen here unless Apple sues george over this (doubt it'll happen). If we really want to test this, isn't there something of a "preventative" type of suit? Where we would file against Apple to confirm we do have the right of first sale? I'd be willing to contribute some time and a couple hundred $ for this if you're up to it george! =) Maybe with the help of the EFF?

Faery.

Posted by: Faery at September 7, 2003 09:30 AM

Since that auction was illegal too, ebay canceled it.

Posted by: dr davis at September 7, 2003 05:04 PM

the real question is not whether George has the right to sell the tune. It's whether iTunes did.

http://www.counterpunch.com/glahn09062003.html

Posted by: latefordinner at September 8, 2003 12:17 AM
Right of First Sale in the Digital Age
Excerpt: George Hotelling is purposely testing whether the right of first sale applies to a digital tune as it does with physical CD’s. He’s selling an iTunes song (a legitimately purchased iTunes AAC file) The ebay auction has been removed, but...
Read the rest...
Trackback from: Eclectic Echoes at September 8, 2003 01:28 AM

well since apple has now said the auction was legal, I guess this makes what e-bay did illegal. They committed fraud by saying your auction was illegal. It's a long shot, but you might be able to sue them now for the amount of the last highest bid ($30,000 or so last time I checked) regardless of whether that bid was a joke or not. I'm sure you could find a lawyer to take the case for free :-).

although if you do this, remember me...I'm broke :-)

Posted by: Mark Kahn at September 8, 2003 10:48 PM
The Day the Music Died
Excerpt: Fox and others have reported what people knew was coming all along. The RIAA has proved just how much of a bully it can be by filing the first 261 of what could be thousands of lawsuits against copyright infringers....
Read the rest...
Trackback from: Waileia at September 9, 2003 03:41 AM
Update on iTunes Sale
Excerpt: Just figured that since the majority of the world gets its news from my blog, I'd follow up on George Hotelling's quest to sell an iTunes song. His auction cancelled by eBay, George has continued to gather sufficient coverage from...
Read the rest...
Trackback from: Leaking Pure White Noise at September 9, 2003 08:31 AM

Hey, I thought this was a great idea, I think the failure came when you failed to provide ebay with your means of distributing the song. I thought about for a while and figured out possibly the easiest way to accomplish the task without violating the their digital media rule. Open the file in a hex editor, print out the file, and specify that it will arrive on paper and that the buyer must have a scanner with some type of OCR software to re-digitize it.

Posted by: Ken at September 9, 2003 01:48 PM

I agree with George and that I believe something like this is, in theory, a legal sale provided there is a mechanism by which to remove all traces of the file from his computer and has a way to transfer the "playability" of the file to the buyer.

However...I really don't like seeing this, because if by some quirk, this is allowed to happen and the RIAA can't stop it, all that will do is have them pull the plug on the ability of people to purchase individual songs. And then we'll be back to the same old choices as before: to buy the CD with "90% crud" at $15 a pop again, pirate the tracks you want or do without.

The ability to purchase individual songs without buying all the crap you don't want is one of the best things that has happened to music consumers in a long time and is one of the few (if not only) consumer-friendly things the recording industry has done in recent years. And as much as I despise the jackbooted thugs of the RIAA along with the rest of you, I believe that in the end, if George's attempts are successful, it will be to the detriment of music consumers who want to do the right thing, but don't want to pay for the crap they don't want.

If this succeeds? Bye-bye, ITMS and other services like it, IMO. Not good.

Posted by: Tim at September 9, 2003 02:22 PM

An interesting point: many people have stated that nobody would want to sell a $0.99 song for less and nobody would buy it for more... why wouldn't someone sell a .99 song for less? I've paid .99 for a CD and I've paid $100 for a CD, why did someone sell a cd for .99? why did I pay $100 for a CD (it was a rare import) but it becomes more clear if you think this way: I have 5000 songs from Itunes on my computer and one day I lose my employment. I need money, I want to sell my mac, but the buyer doesn't want to pay extra for the music, so I sell the library of music that I paid almost $5000 for, I sell it for $2500 - that's .50 per song. That's not me losing $.49, in actuality I've lost over $2000, but on the other hand I've turned a $5000 library that I would have thrown out into $2500. and this is just one instance of a GOOD reason to allow someone to sell the item. Note that the songs on Itunes are not CHEAP, an album costs $9-15 much like its CD counterpart... we're not getting off easy. On the other hand we are getting more value in a way in that we can only buy the two or three songs we like off an album, this may actually lower the costs of recording companies as they only record "single-quality" songs and whole albums vanish along with "filler" songs that are sub-standard when recorded and always known to be sub-standard. (by the way, bands won't stop writing these songs, just the commercial route to getting these songs will dry up)


anyhow, someone just dropped $2500 for a library of songs that would have cost double that if they had gone to iTunes Store and bought them, seems like they made out and I've got $2500 extra in my pocket to buy food and pay the electric bill while I try to come up with something new to do to make money. Otherwise I have a "license" for 5000 songs and I'm hungry, cold and my TiVo has no electricity. Can I sue Apple for that? Um, you know - the TiVo bit... TiVo owners know what I'm talking about - damages for emotional anguish.

Posted by: jay at September 9, 2003 07:37 PM
Selling iTunes
Excerpt: It worked, and now Keith Elder and not George Hotelling is the proud owner of Double Dutch Bus by Devin Vasquez.
Read the rest...
Trackback from: Blogcritics at September 10, 2003 01:17 PM
Selling in the Digital Age
Excerpt: Found at: Blogcritics.org: Selling iTunes After all the hypeand press that some guy got for trying to sell a music file he purchased from iTunes, and ebay cancelling his auction because they claimed it broke one of their terms and...
Read the rest...
Trackback from: Fireaters Weblog at September 10, 2003 08:55 PM
Testing the legal boundaries of the AAC format
Excerpt: My boyfriend George is winning his 15 minutes of internet fame with his latest argument: "I just posted an eBay auction for a song I bought from the iTunes music store. It should be interesting to see how this works...
Read the rest...
Trackback from: DIFL ? at September 22, 2003 01:27 AM
Selling iTunes
Excerpt: It worked, and now Keith Elder and not George Hotelling is the proud owner of Double Dutch Bus by Devin Vasquez.
Read the rest...
Trackback from: Blogcritics at November 7, 2003 08:08 AM
George's i-tunes track reaches $15,000 on ebay
Excerpt: George's iTunes m4p has reached a bid of $15,000 on ebay. Either there are a lot of wingnuts putting in bids for fun, or someone is really really committed to some fuzzily formulated anti-hegemonic principle or other. Either that, or...
Read the rest...
Trackback from: creativity/machine at November 17, 2003 02:52 AM
Testing Ownership of Digital Music
Excerpt: Let's pretend we are deeply naive for a second: when you buy a CD, are you buying the music it contains? Or an aesthetically value-added material object that enables you to access the music? i-Tunes (and other online digital music...
Read the rest...
Trackback from: creativity/machine at November 17, 2003 02:53 AM
Trust And Safety Department
Excerpt: LINK: Go George! Go! This tickles me to no end because it has the potential to cause total chaos. Big business wants to use the net for commerce but they haven't really thought out the implications of trafficking in digital...
Read the rest...
Trackback from: Dae's Demesne at November 23, 2003 12:54 PM
Bookmark cleanup
Excerpt: It's that time again! It's time to prune hundreds of dead links, junk, duplicates, etc. However, there are still ones I can't let go. Therefore, they will be here to collect dust until someone searches for it. Office for Science...
Read the rest...
Trackback from: thegreatfutz.net at December 29, 2003 03:50 PM
SongBuddy
Excerpt: If you're sick of what the radio (particularly Clear Channel stations) has to offer, and you're looking for some new artists to refresh your palate, check out SongBuddy. SongBuddy was developed by the witty and creative George Hotelling who also...
Read the rest...
Trackback from: DIFL ? at January 26, 2004 11:11 AM
Reselling AAC files from Apple's Music Store
Excerpt: George is conducting an experiment on the ownership rights of downloaded music. Specifically, purchased AAC files from Apple's music store. You can bid on his AAC file on eBay, but be forewarned that he only payed 99 cents for...
Read the rest...
Trackback from: RoboRanch Blog at March 14, 2004 04:23 PM

Exactly. In law, it is generally considered that you cannot sign a contract or make an agreement that negates right's you have under law. If you make such an agreement, the agreement is not enforceable. Take it to extremes, someone asks you to agree to kill them, does this then make it legal for you to kill this person, even though you may have an agreement signed by this person? Of course not. In the same way, just because you agree when downloading a song not to onsell the song, the seller cannot deny you the right to pass on the licence you own to a further party. Therefore the agreement they ask you to agree to is illegal, and negates your rights as the possessor of the licence. Put it this way, every time you are sold a licence, the sellor has one less licence available to sell ie: they have passed the licence on. Apple Tunes don't just happen to own the copyright for all this music, and sell it as many times as they like without paying anyone anything. iTunes have to purchase the music too (even if they buy blocks of "rights" from recording companies, it's the same thing). So I believe that if push came to shove, in court they may not be able to enforce their rights over a particular song they no longer hold the licence to (just like once you buy a cd the store you buy it from cannot dictate who you pass it onto once you have finished with it)

Posted by: max at April 3, 2004 10:04 PM

Dear seller,
I hereby wish to inform you that i am interested to purchase from you.
I saw the advert on the internet today, Kindly give me your best offer.
I will make my payment through certified/cashiers cheque.
I have a client in Redding CA and will be ready to send you payment by
post you when we both finally agree on terms.
If its still available for sale, provide the details below...
YOUR NAME...........
MAILING ADDRESS.....
TEL. NUMBER.........
Kind regards

Posted by: sera at May 8, 2004 06:41 PM
Testing the right to resell online music.
Excerpt: User auctions iTunes song on ebay, donates money to EFF. Let's hope some good comes out of this!
Read the rest...
Trackback from: Pavleck.Com at June 30, 2004 05:39 AM
Saturday, September 06, 2003 08:51 PM
Excerpt: Did you see this? George Hotelling bought a song from the Apple Music Store, then tried to sell it on eBay. He was trying to see if he truly "owned" the song, but eBay cancelled the auction (they have a policy against selling anything which can be...
Read the rest...
Trackback from: Critical Section at November 6, 2004 07:02 AM
Fifteen Minutes Anyone?
Excerpt: George Hotelling is performing an "experiment." For 99 cents, he purchased a song on Apple's iTunes music service, and then put the rights to his download for sale on eBay. According to the AfterDawn.com newsletter, bids were as high as...
Read the rest...
Trackback from: Sync2Play at January 26, 2005 06:43 PM
Peerflix, right of resale and the one-copy-per-song town.
Excerpt: The Menlo Park startup Peerflix has been getting some ink the past couple days. They're like NetFlix, only instead of renting a DVD for an indefinite time you trade DVDs...
Read the rest...
Trackback from: DocBug at March 12, 2005 01:34 AM
selling digital music
Excerpt: In an interesting legal test, a Michigan man is selling a track he purchased from the iTunes Music Store on eBay. In a posting to his weblog, George Hotelling writes: Does the Right of First Sale Still Exist? I just...
Read the rest...
Trackback from: rants and ramblings at June 10, 2005 01:57 PM

Sorry, comments are closed.