Court Rules Users Can't Resell Songs Bought on iTunes

[gnasher729]

If you legally purchased material there should be no reason you cannot sell that copy.

There is copyright law. Copyright law says absolutely clearly that you have no rights to make _any_ copies unless the copyright holder allows it (by giving you a license), and the copyright holder hasn't given you a license allowing you to make copies to sell them.

And with downloaded music, the fact is that you can't move that music from your computer to mine without making a copy in the process; probably more than one. That's the difference to physical CDs: Selling a CD doesn't involve making any copies.

But now you ask. OK I can't sell the file because I don't own it. But why can I not resell the license. Only one answer to that. Because Apple in their fine print says you can't.

You can resell the license, but that would be worthless to the buyer because you can't legally give them a copy of the music. The reason why you can't give them a copy is not because Apple says in their fine print you can't (and Amazon says you can't and everyone else says you can't), the reason is that Apple doesn't say you can. As long as they say nothing and don't give you permission, you can't.

 

[load97]

I can copy the contents of one CD to another CD ("clone") so that nobody will be able to tell the difference between them. This is because the CDs will have identical bit patterns. Of course it's illegal to sell the copies and I wouldn't encourage anyone to do it, but my point is that it will still be hard to determine if it's original or not. And even if I do sell the original legally, I may still have an exact copy of it for illegal use.

Very true.

A digital copy is still a physical item in exact terms; which is how lawyers play it. It's not over the air radio waves etc. The item(song) just relies on a 3rd party item(hard drive/flash drive/ mp3 player/CD) to live; so to speak.

If the music industry would embrace it's customers, so much more could be done for both sides. A universal market place for new/used goods would be a good start. Then DRM could have had a better chance of being embraced by the public(customers) if it wasn't so inflexible. And so on and so on it goes...

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What do you think CDs are? They are not the masters. They are copies.

Buy a copy of a Picasso print legally and you can sell it if you choose.

If you legally purchased material there should be no reason you cannot sell that copy. The question that remains is whether what you are selling is a copy of what was purchased or you sold the original purchase and kept a copy for yourself. Candidly, there should be no reason one cannot sell an iTunes purchase or transfer it. Protecting the artist and the companies is an issue but the audience/purchaser should not be punished collectively with such stupid laws.

Correct & completely agree.

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There is copyright law. Copyright law says absolutely clearly that you have no rights to make _any_ copies unless the copyright holder allows it (by giving you a license), and the copyright holder hasn't given you a license allowing you to make copies to sell them.

And with downloaded music, the fact is that you can't move that music from your computer to mine without making a copy in the process; probably more than one. That's the difference to physical CDs: Selling a CD doesn't involve making any copies.




You can resell the license, but that would be worthless to the buyer because you can't legally give them a copy of the music. The reason why you can't give them a copy is not because Apple says in their fine print you can't (and Amazon says you can't and everyone else says you can't), the reason is that Apple doesn't say you can. As long as they say nothing and don't give you permission, you can't.

He's not referring to a copy that was made, but to a copy that was purchased. You need to back dat **** up & settle down tonto lol.

 

[Winni]

My understanding was that this was clear via the license agreement we have to OK before making iTunes purchases.

Firstly, this is not only about iTunes, it's a general ruling. Secondly, and that is the important - and NEW - part here, the judge ruled that the consumer OWNS the original media file. And since you OWN it, you can theoretically do with it what you want.

BUT: The judge also ruled that when you upload YOUR file to this online resale service, you in face generate a NEW COPY, and THIS is something you are not allowed to do. And this is the argument why you cannot resell music downloads.

According to the judge, it also does not matter that this resell service uses a software that makes sure that you no longer own the original music file after the upload to their servers. The fact that technically a replica/copy of the original file is created is what violates the copyright of the record labels.

You could now ask why it is then okay if you copy the file to all of your computers and mp3 players. Probably this is okay because of the license agreement. So in this case, it seems that you are entitled to create new copies of the file. You are just not allowed to sell your file if you no longer want it. Which is quite contradictory to the judge's finding that you actually own the file. If you own something, you should be entitled to sell it if you want to.

Anyway. The ruling is not yet final and the sued online service will certainly appeal and take it to the next level.

However, it also shows what a different take your American legal system has to ours here in Europe. Only a few months ago, our courts decided that it is fully legal to resell used software, including OEM software and even software obtained through volume license agreements (in the latter case as long as all obtained copies are sold). We do not yet have a court decision for other digital content like mp3 files, yet. But the software ruling already demonstrates a major difference to the US-American understanding of the subject.

 

[Bokes]

Precisely, you can't re-sell something that isn't yours. Period. The artist, writer and label own the songs you buy. It would be no different then selling files you have no right to sell and it is illegal.

?
Do they also own the physical LP, cassette and CD's?
I always assumed they own the rights to sell the content/material in some form. Once a buyer pays the price - the item or piece of media is owned by the buyer.
The buyer is allowed to sell the item in it's current form.
You can do it freely on EBay and Amazon and Craiglist. Even record stores.

The owner is not selling the music/content to be used in a new form ie Movie/TV show.

It really is a mess.
Yes- the industry and the big $$$ will control this.
The bottom line IMO- when you click BUY you are not really buying to win in the traditional sense and the wording should change.

 

[vladi]

Sure selling a downloaded song is too obvious that it cannot be done but on the other hand selling a complete iTunes account sounds tempting, after all its something that definitely is of your ownership (unless Apple has something dirty in infinite pages of EULA).

BTW how come no body puts a stop to those EULAs that don't make any sense since no body is reading them anyway?

 

[emulator]

This is the reason I still buy physical CDs, it's usually cheaper too plus ill decide what bitrate to encode in

Indeed. This plus 24/96 FLACs.

 

[pondosinatra]

The only media you ever truly own is physical media. Which is why I buy my music and movies from Amazon - not from iTunes.

 

[Meandmunch]

How would you resell music anyways? What's stopping you from selling file copies? I think I don't understand..

Thats my question exactly. With DRM free music how is one file not turned into thousands and "re-stamped" with ownership?

 

[Fairthrope]

Back to torrents then...

 

[applesith]

The content is digitally encoded on the CD. That's a significant similarity. What is the difference?

Selling a tangible item vs. a digital file. You can only sell a CD once, but digital files can be reproduced and sold multiple times. Yes, you can reproduce a CD but it's clearly a copy and not the same as the original.

 

[jaredpetersen]

so does this mean...

that the file they sold you is not the one you have on your computer then too, and they have no legal rights or control over that file since it's not the original file?

 

[jekyl]

Incorrect, sir. This ruling changes nothing. It has never been legal to make a copy of music and sell it. And if you think you aren't making a copy, you don't understand computers on a deep level. The only thing this ruling did was uphold the status quo. No laws changed, and nothing weird happened. Did you even read what the defendant was trying to get by with? This was not about a buddy selling a song to his friend.

An interesting aside. Years ago my brothers entire cd collection was stolen from his car in a smash and grab. He bought a CD burner, re bought all of his CDs with the intention of only keeping copies in his car. It seems that if those COPIES are stolen, in order to comply with the law he would have to destroy the originals. Is that f'd up or what!

 

[lukasz74nj]

Yet another reason not to use iTunes

Another victory for special interests. We need to get rid of lobbyists from the government.

 

[Earendil]

that the file they sold you is not the one you have on your computer then too, and they have no legal rights or control over that file since it's not the original file?

People are missing the point I think. Primarily what you trade your money for when you "purchase" music, is the rights to play the music in certain circumstances. You may play the music in your own home. You may not play it on your home brewed radio station. Does this make sense?

The closest equivalent example I can give is if you and I sign a contract. You have a piece of paper, you can do with that paper what you want. But what you can't do is transfer the contract to a 3rd party without my consent. You can't change the contract without my consent. All of this is independent of whether the contract is contained on paper, a PDF, or etched via morse code into stone.

Is is similar to the way movies work. You can buy the rights to play a movie in your home, but you need to buy additional rights to play that movie on a big screen and charge money for it. Enforcing such a law is copy-right law, but the rights that are granted to you are not up to or written by the state, they are written by the copy-right holder.

An interesting aside. Years ago my brothers entire cd collection was stolen from his car in a smash and grab. He bought a CD burner, re bought all of his CDs with the intention of only keeping copies in his car. It seems that if those COPIES are stolen, in order to comply with the law he would have to destroy the originals. Is that f'd up or what!

This is where purchasing the "rights" to the music is actually beneficial. Technically you still own the rights. Those can not be stolen. However you may have had the proof of your rights stolen and are then unable to prove it. Also, even if proof was shown the controlling entity has no obligation to provide a copy to you. That said, when my Dad's computer was stolen he was able to download almost all of his iTunes music again after contacting Apple (this was a few years ago before cloud syncing).

Another victory for special interests. We need to get rid of lobbyists from the government.

Please go read what the offending party was doing. They were "buying" and "selling" large quantities of digital files, making copies where they could not prove all original copies were destroyed, and then selling them again for money, all without the consent of the copy-right holder.

On a different note, from a consumer perspective I don't understand. If I have the option of supporting an artist (even if only a little) with a 99 cent song purchase, or buying a shady "used" copy for 50 cents where none of it goes to the artist, what am I going to choose? Why not just go download it from an "illegal" site, as it'll be cheaper for you and the end result is exactly the same for the musician.

I know some of you would like to make $5 selling those Nicki Minaj songs you bought that one drunken Friday night. But is it all that big a deal? What I WOULD like to see is the ability to transfer a music collection upon death, or the ability to "loan" music such that a friend can borrow an album for a short period of time without Authorizing their computer to play all your music. Those are the sorts of things where the copy-rights and technology have not caught up to consumer desire. But don't misunderstand, we're talking about consumer desire, not inherent rights as human beings.

 

[diazj3]

I guess this takes the value of digital music purchases closer to zero. This position by the music industry and resellers such as Apple is as good as shooting themselves in the foot, and an incentive to get music for free as physical availability continues to fade away.

 

[LeiQQ]

Digital copies would make for odd Yard Sales or School/Church/Organization Flea Markets-Bazaars. And funny to think in 25-50 years the Purple Heart (type organizations) wont have much in the way of books or CDs or Movies.

In a way it "stinks" but in a way it makes sense...I could sell a copy but keep a copy. Unless there is a form of DRM which everyone hates.

A piece of plastic makes weird money. A cell phone makes even weirder money. Things change. X-rays are digital and viewed on computer screens. One day everything is going to go digital and not having a way to give/sell the content is very counterproductive if this is the way most companies want to go. With software I can resell it because I can give the seller the unique serial number. There is a way if people are willing to work it out.

We won't need yard sales because there will be online digital yard sales on eBay.

 

[idunn]

Crooked court department

Well, this court is clearly wrong.

Yes, I know what they said about books. But in extension—and by extension in future in all sorts of unhappy ways—would they be suggesting one could not resell their house? Or maybe if just bought online, as kind of digital?

Sorry guys, but when one BUYS something that implies ownership, and the right to dispose of it how one will. Clearly the license implied when digital content is bought does not extend to the entire world, or that a song purchased once can be transmitted freely thereafter to all. But if the purchaser relinquishes rights to it, and the ability to use it, upon sale to another, then no foul.

If these vendors wish to only rent something, digital or otherwise, fine. But do not dare tell me I'm buying it if in fact I've only acquired a license for sole use.

 

[Cavalier777]

pardon my irateness... but who the f cares? let's be honest. this is the age of the internet pirate. nothing digital can be sold for sure.

 

[Earendil]

If these vendors wish to only rent something, digital or otherwise, fine. But do not dare tell me I'm buying it if in fact I've only acquired a license for sole use.

Almost all media is this way. You bought a license and whatever the media came on. This is true of books, movies, and a dozen other things for which examples have been given. The problem is that people flat out do not understand this, but didn't have to because
A) It was hard to mentally separate the two
B) you'd never get caught unless you were doing something that was "obviously" illegal.

For example, photocopying a page out of a book violates the copyright on most books. Feel free to sell the pages, burn the pages, lock the pages away in your attic, but you can not duplicate the pages without getting a different use license. The implied license you get at the bookstore doesn't cover this.

As I've said further up in this thread, the same applies to movies. There is a limit to the number of people that can watch a "home movie" at one time. This is why Movie Theaters don't go down to Walmart and buy DVDs, and charge everyone a dime to watch it. They require a different and far more expensive license.

Just because you think you own something, doesn't actually mean that you do. And you are purchasing something, likely purchasing it for life, so it's not renting, which implies you have to return it or have a reoccurring fee.

 

[gnasher729]

An interesting aside. Years ago my brothers entire cd collection was stolen from his car in a smash and grab. He bought a CD burner, re bought all of his CDs with the intention of only keeping copies in his car. It seems that if those COPIES are stolen, in order to comply with the law he would have to destroy the originals. Is that f'd up or what!

Not at all, because you didn't think it through. Your brother is not the one committing copyright infringement, it's the thief who is doing that. If the thief rips the stolen CDs to his Mac and puts them on his iPod, that's copyright infringement. Even playing them will be copyright infringement. But it's the thief doing it, not your brother.

 

[Earendil]

To those complaining about how this whole "buying a license not an instance of a song" thing, let me remind you of something: It was the license argument that helped win us the ability to play purchased songs on many difference devices.

Apple argued against the record company saying that its old school to think "buying a song" meant only one instance, because the person who bought it has the right to play the song within the limits of the license. They re-wrote the license to a degree. There were other things at play of course, but that's part of the "concept" of a license instead of a "single copy" like the good old days of physical media. In the physical media days, you'd have to either move the media around, buy multiple albums, or do something illegal like copying it. In the license world, you can have multiple copies and the right to play a song (within limits) regardless of where you got it from. This is a beautiful thing

 

[rodriguise]

It's not hypocrisy we smell, but your legal illiteracy. In the U.S., courts are not constitutionally authorized to promulgate law. Congress is. When a court makes a statement like this in a ruling, what they are communicating is that anyone who wants a change in that particular law should be telling their representative(s) to enact legislation to that effect. The court's job is to apply the law to the case currently before it, not to write the law itself.

This is what they were explaining in Social Studies during those slow afternoons when you were doodling band logos in your notebook and staring at Jessica Nickerson's tight skirt two desks over.

...as to the topic at hand, the licensing model is pretty clear, but I'd love to see some clarification on inheritance. I have a loooooot of iTMS purchases that I want to make sure can pass through to my wife and then children. Yes obviously I'll give them the login info, but that's a stopgap measure. Transferability is going to become necessary down the road.

Not exactly sure what I said that justifies you being a d1ck to me, but I apologize if I offended you when I gave my personal opinion about the topic. You make valid points but you discredit yourself with the lack of class and hostility.

 

[Troy598]

Digital copies would make for odd Yard Sales or School/Church/Organization Flea Markets-Bazaars.

 

[Judas1]

There is copyright law. Copyright law says absolutely clearly that you have no rights to make _any_ copies unless the copyright holder allows it (by giving you a license), and the copyright holder hasn't given you a license allowing you to make copies to sell them.

And with downloaded music, the fact is that you can't move that music from your computer to mine without making a copy in the process; probably more than one. That's the difference to physical CDs: Selling a CD doesn't involve making any copies.




You can resell the license, but that would be worthless to the buyer because you can't legally give them a copy of the music. The reason why you can't give them a copy is not because Apple says in their fine print you can't (and Amazon says you can't and everyone else says you can't), the reason is that Apple doesn't say you can. As long as they say nothing and don't give you permission, you can't.

How come using a computer isn't illegal then? For a computer to function, it copies data into memory to run it. And computers are always moving files around to different places on the hard drive. Moving files require duplication of the files beforehand. To go so far to distinguish digital data from physical media is crazy. They are all just data.

 

[laurim]

I don't get why first sale doesn't apply to digital media. If I bought it with my money, and I no longer want it and its still valuable to somebody else, why can't I sell it? Why should it just sit around, not being put to good use? I am not talking about reproducing the digital media and selling it for profit. I am talking about recuperating my money for material I no longer use.

Until there's a way to ensure a person didn't make themselves a copy, there's no way to allow resale of digital media. It's a limitation of technology and the existence of widespread piracy. If everyone was honest, this law wouldn't exist. That's why we can't have nice things.

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pardon my irateness... but who the f cares? let's be honest. this is the age of the internet pirate. nothing digital can be sold for sure.

It can if you are required to have a dongle or a constant connection to the internet that checks the registered info on the media like some major software does. If people keep pirating, it could come to this. Complain all you want about drm, imagine if you have to carry around a special dongle to be able to play your music. Piraters make life suck for the honest people.

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How come using a computer isn't illegal then? For a computer to function, it copies data into memory to run it. And computers are always moving files around to different places on the hard drive. Moving files require duplication of the files beforehand. To go so far to distinguish digital data from physical media is crazy. They are all just data.

Is it being sold?