Comments on: Selling an iPod on eBay; legal issues?

Question: Selling an iPod on eBay; legal issues?

keswick — Tue, 12 Sep 2006 13:48:11 -0800

Is it legal to sell iPods preloaded with music?

I'm selling my iPod on eBay, and I've noticed iPods preloaded with music or movies command a much better price, but I don't want The Man ^tm to come down on me. Has anyone been busted for this?

By: Shecky

Shecky — Tue, 12 Sep 2006 13:56:53 -0800

I've sold several pre-loaded iPods on eBay, and I've never heard anything from the aforementioned Man™. Perhaps I was just lucky, but I think you'll be fine as long as you don't title your auction something like "ZOMG L@@K PIRATE IPOD 200 MOVIES YARR".

By: birdherder

birdherder — Tue, 12 Sep 2006 14:01:21 -0800

Yes. It is against the US law to sell your iPod loading with Music or movies.

I doubt someone has been busted yet.

This is similar that sell their old computers on eBay loaded with Photoshop and a bunch of other warez. Not legal. But probably not enforcable.

By: Vantech

Vantech — Tue, 12 Sep 2006 14:21:40 -0800

No - With several caveats:

You send the CD originals along (grey area?)
It's all original or CC commons music.

If you bought all of your commercial music through iTunes, this still doesn't put you in the clear: AFIAK, the DRM is non-transferable.

By: squeak

squeak — Tue, 12 Sep 2006 14:26:10 -0800

I don't know if anyone was busted for it but there was an iPod loaded with Negativeland albums on eBay that caused a stir. [link]

By: Chuckles

Chuckles — Tue, 12 Sep 2006 14:29:38 -0800

The most likely answer is, nobody knows, because it hasn't been thoroughly tested in court.

It isn't the same as pre-loaded software, threatening letters don't make law, and terms in license agreements are often found to be unenforceable.

By: The Confessor

The Confessor — Tue, 12 Sep 2006 14:48:46 -0800

To expand on birdherder's point:

You're contemplating engaging in copyright infringement.

Copyright infringement is patently illegal, but so commonplace in the digital age that it is only practical for the rights-holders to pursue the most egregious offenders: operators of warehouses where media is replicated in bulk, and online clearinghouses which induce or enable infringement, such as Napster, Kazaa, and Grokster.

That said, however, rights-holders have also begun an auxiliary campaign against those who infringe on a smaller scale. While this campaign has largely been confined to file-sharing networks, it is possible that you may be targeted.

Being a cautious person myself, I would advise you to avoid exposure, especially as the nature of the infringement - as enticement toward purchase - would likely make a judge less inclined to limit damages.

By: knave

knave — Tue, 12 Sep 2006 15:03:25 -0800

The most likely answer is, nobody knows, because it hasn't been thoroughly tested in court.

I completely disagree. If you keep the originals of these songs, and you send the buyer an ipod loaded with copies of the songs, it's a clear-cut case of copyright violation.

If, however, you are transferring ownership of the music to the buyer, then I think that falls under the right of first sale, meaning you can sell it. But you can't keep copies for yourself.

By: aubilenon

aubilenon — Tue, 12 Sep 2006 15:32:06 -0800

Didn't Apple sell U2 iPods preloaded with a bunch of U2 stuff?

It's illegal to give away / sell other people's music unless you are licensed to do so. This is true whether you are selling iPods, using a p2p file sharing system, or trading copies of CDs.

Will you get caught? Doubtful.

By: sophist

sophist — Tue, 12 Sep 2006 16:05:29 -0800

legal? no.
enforced? no.

if you copied all your cds and sold the copies on ebay, would that be legal? how is this any different?

By: Dunwitty

Dunwitty — Tue, 12 Sep 2006 16:33:50 -0800

Well stated, Confessor. However, being a cautious person, shouldn't you have prefixed or suffixed your answer with a"IANALOALNYL" disclaimer?

By: Dunwitty

Dunwitty — Tue, 12 Sep 2006 16:34:41 -0800

Damn preview. Please separate the "a" and "IANALOALNYL" segments in your own minds.

By: klangklangston

klangklangston — Tue, 12 Sep 2006 16:56:19 -0800

"If you bought all of your commercial music through iTunes, this still doesn't put you in the clear: AFIAK, the DRM is non-transferable."

I think you need to ask revgeorge

But the answer is really "It depends, but arguably illegal." From this non-lawyer.

By: delmoi

delmoi — Tue, 12 Sep 2006 17:02:52 -0800

Yes. It is against the US law to sell your iPod loading with Music or movies.

Huh? What law is that? Certanly not copyright law, with the right of first sale (if you buy something, you have the right to re-sell it). If you load it up with pirated MP3s, it would be illegal, but if it has songs you purchased from itunes, it would be legal.

By: DoctorFedora

DoctorFedora — Tue, 12 Sep 2006 19:04:37 -0800

It wouldn't be "right of first sale," because you'd be selling copied copyrighted material without a license. Selling copies of someone else's copyrighted material is called "bootlegging."

By: mbrubeck

mbrubeck — Tue, 12 Sep 2006 19:37:12 -0800

Doctor Fedora, if your blanket statement were true, then used bookstores would be illegal. Fortunately, the first sale doctrine allows sale of a legally obtained copy of a copyrighted work:

The first-sale doctrine is limitation upon copyright recognized by the U.S. Supreme Court in 1908... The doctrine of first sale allows the purchaser to transfer (i.e. sell or give away) a particular, lawfully made copy of the protected work without permission once it has been obtained. That means the distribution rights of a copyright holder end on that particular copy once the copy is sold.

Yes, it's illegal to copy a work for the purpose of resale, but you can sell or otherwise transfer the copies that you own. It's not clear how this applies to digital files like the ones sold at the iTunes Music Store, since merely transferring them between devices requires making a copy. However, if you don't retain any copy on your own device, you could try to argue that this is "transient" copying and therefore not restricted by copyright.

The success of that argument in court would probably depend on the lawyers and judges involved. Duke University's Law and Technology Review published an article arguing that first sale does not apply to digital recordings. As far as I know, this hasn't been tested. As someone above noted, our own revgeorge tried to test this by auctioning an iTunes Music Store track on eBay, but the eBay cancelled the auction without giving a reason.

By: nanojath

nanojath — Tue, 12 Sep 2006 22:23:31 -0800

I'd call it illegal, I think the suggestion that a legal copy one makes to one's HD or MP3 player may be equated to a "legally obtained copy" as understood for the purposes of the first sale doctrine is spurious.

I agree though that it's untested - and seems related to the question of whether there is any legal requirement to get rid of legal copies (again, rips to HD or MP3 player) if one sells the original copy. This is interesting as I've noted at least one used CD retailer in my community running advertisements that explicitely advise people to buy used CDs, rip them, and then sell them back to the same store. Are they soliciting infringement? Who knows?

According to this article eBay considers it infringement and will pull the auctions if they find them. I have my doubts whether the RIAA would find the phenomenon worth pursuing, though I could imagine them pursuing an initiative to figure some way to automatically find and report preload sales to force eBay to pull them more routinely.

By: Doublewhiskeycokenoice

Doublewhiskeycokenoice — Thu, 14 Sep 2006 17:36:20 -0800

It's infringment. Think about it. You bought a CD, right? You then made digital files out of said CD and put them on an ipod (or you bought the song(s) digitally, but whatever). If you sell the ipod with the digital songs still on it, you provide someone with royalty-free music while retaining your original copy. It's like selling someone a book you xeroxed. Right of first sale doesn't apply to shit you just coppied and made available for someone else, which is what's being done here. What right of first sale allows you to do is make copies of all the stuff you bought fair and square and sell the originals to someone else. HOWEVER...I don't think the RIAA or MPAA is gonna come hunt you or anyone else down because of this, although apparently ebay will pull your auction, so watch out for that.