Legalities of Selling Legally Downloaded Music?
January 12, 2009 10:56 PM Subscribe
Assuming I am true and honest to my word and delete the music from my hard drive once I sell it, how can I legally make money selling old music that I have legally downloaded and no longer want?
I have bought a lot of music from the iTunes Store over the years. My music tastes have changed a bit since the days that I first started downloading music from them and so now I'd like to get rid of some of the older songs and albums that I no longer want, preferably for cold hard cash if I could. But unlike an old unwanted CD, I can't just go and sell it down at the local music shop. Is it OK to do this on eBay? If not, and assuming I am true and honest to my word and delete the music from my hard drive once I've actually sold it, how can I legally make money selling old music that I have legally downloaded and no longer want?
I have bought a lot of music from the iTunes Store over the years. My music tastes have changed a bit since the days that I first started downloading music from them and so now I'd like to get rid of some of the older songs and albums that I no longer want, preferably for cold hard cash if I could. But unlike an old unwanted CD, I can't just go and sell it down at the local music shop. Is it OK to do this on eBay? If not, and assuming I am true and honest to my word and delete the music from my hard drive once I've actually sold it, how can I legally make money selling old music that I have legally downloaded and no longer want?
It really depends enormously on the terms of use you agreed to when using the iTunes store. Whether the music is DRM'ed or not, I would bet that you agreed not to resell the music -- which means that in principle if you try, it's actionable.
On the other hand, such a contract clause might not be enforceable. There's what's known as the "First Sale Doctrine" which at least in the US means that if you buy a copy of a copyrighted work, you have the legal right to resell it without permission from the original copyright owner and without paying him any royalty. (The "First Sale Doctrine" says that his rights only extend to the first sale.)
The question would be whether Australian Law recognizes a similar exception to copyright law, and whether it can be yielded via a shrinkwrap license (or a click-to-enter license, which amounts to the same thing). Only an Australian intellectual property lawyer could tell you for sure.
What I know is that if it is legally possible for you to yield it, Apple made damned sure you did before letting you into the iTunes store.
posted by Chocolate Pickle at 12:44 AM on January 13, 2009
On the other hand, such a contract clause might not be enforceable. There's what's known as the "First Sale Doctrine" which at least in the US means that if you buy a copy of a copyrighted work, you have the legal right to resell it without permission from the original copyright owner and without paying him any royalty. (The "First Sale Doctrine" says that his rights only extend to the first sale.)
The question would be whether Australian Law recognizes a similar exception to copyright law, and whether it can be yielded via a shrinkwrap license (or a click-to-enter license, which amounts to the same thing). Only an Australian intellectual property lawyer could tell you for sure.
What I know is that if it is legally possible for you to yield it, Apple made damned sure you did before letting you into the iTunes store.
posted by Chocolate Pickle at 12:44 AM on January 13, 2009
Troy and Chocolate Pickle probably have it right.
I presume what will happen is that the first sale doctrine will be interpreted to mean that the object containing the IP cannot be restricted from being sold- the book, the DVD, the MP3 player that came loaded with introductory music. Since downloaded songs aren't objects, I expect that the first sale doctrine would be only narrowly construed in this case, if it applies at all- you potentially could sell your computer with your itunes library on it, provided you relinquish all rights to the songs and sold the itunes account with it.
I wonder if iTunes could set up a "used" section- you turn your songs back in for, say, a 25 cent credit. Those songs would be "locked" from your iTunes/iPod unless you re-bought them. Meanwhile, purchasers could then buy that inventory at a discount, say 50 cents. Or you could turn those songs in, locking them out of your account in the same way, and gift them to friends for a dime or something to compensate Apple for their trouble. I would expect that would fulfill Apples need to maintain control over the digital rights of their artists, while letting people trade in unwanted music, obviating the need to get sued for just these circumstances...
posted by gjc at 2:40 AM on January 13, 2009
I presume what will happen is that the first sale doctrine will be interpreted to mean that the object containing the IP cannot be restricted from being sold- the book, the DVD, the MP3 player that came loaded with introductory music. Since downloaded songs aren't objects, I expect that the first sale doctrine would be only narrowly construed in this case, if it applies at all- you potentially could sell your computer with your itunes library on it, provided you relinquish all rights to the songs and sold the itunes account with it.
I wonder if iTunes could set up a "used" section- you turn your songs back in for, say, a 25 cent credit. Those songs would be "locked" from your iTunes/iPod unless you re-bought them. Meanwhile, purchasers could then buy that inventory at a discount, say 50 cents. Or you could turn those songs in, locking them out of your account in the same way, and gift them to friends for a dime or something to compensate Apple for their trouble. I would expect that would fulfill Apples need to maintain control over the digital rights of their artists, while letting people trade in unwanted music, obviating the need to get sued for just these circumstances...
posted by gjc at 2:40 AM on January 13, 2009
According to the Apple Terms of Service Agreement, there is no legal way you can do what you sugest. The comments about stripping the DRM will definitely work, but that is a moral decision you have to make.
That said, Apple's deliniation between digital music and physical copies suck IMHO. If you were to instead buy all your music as physical CDs, there is nothing wrong with selling them to someone else. The fact that we can't use digital music as we would with physical CDs is incredibly frustrating. All apple would have to do is create a way to surrender your rights to the music so your account can't access the songs anymore, and transfer your licesne to another user. That simple. But They'll never do it.
You may be able to copy large portions of your unwanted library onto a DVD as a data disc as mp3s to remove the DRM, and then sell the DVDs. Then if you made good on your wordto delete the music off your computer, you're set. In the ad, you can also say that you're selling music CDs... that may get you around the ebay or craigslist TOS agreement.
Good luck
posted by FireStyle at 3:29 AM on January 13, 2009
That said, Apple's deliniation between digital music and physical copies suck IMHO. If you were to instead buy all your music as physical CDs, there is nothing wrong with selling them to someone else. The fact that we can't use digital music as we would with physical CDs is incredibly frustrating. All apple would have to do is create a way to surrender your rights to the music so your account can't access the songs anymore, and transfer your licesne to another user. That simple. But They'll never do it.
You may be able to copy large portions of your unwanted library onto a DVD as a data disc as mp3s to remove the DRM, and then sell the DVDs. Then if you made good on your wordto delete the music off your computer, you're set. In the ad, you can also say that you're selling music CDs... that may get you around the ebay or craigslist TOS agreement.
Good luck
posted by FireStyle at 3:29 AM on January 13, 2009
Not sure if this is a hypothetical or not, but if it is not, I know that I would never buy iTunes music NOT from iTunes. So regardless of legality, this might be more difficult than it seems.
posted by Grither at 4:55 AM on January 13, 2009
posted by Grither at 4:55 AM on January 13, 2009
Best answer: Relevant ars technica article about this exact issue.
posted by jmd82 at 7:12 AM on January 13, 2009
posted by jmd82 at 7:12 AM on January 13, 2009
FireStyle wrote "In the ad, you can also say that you're selling music CDs... "
If I paid for a music CD, even a used one, and was given a disk of burned MP3 tracks instead of an original disk, I'd sure as hell ask for my money back and report it to the site manager. If this were OK to do nothing would stop anyone from selling the same tracks over and over. If I am buying a physical copy I expect a physical copy, which includes my right to sell said copy if I so choose.
gjc wrote "I wonder if iTunes could set up a 'used' section- you turn your songs back in for, say, a 25 cent credit."
Within 5 days of this happening, every song in iTunes would be available as "used", unless Apple limited each used song to one single resale, and even if they did that there would be an incredible number of complaints from people that clicked the "buy used" option but lost out to the person that clicked a millisecond before them. These songs aren't physical objects like a refurbished iPod. That's the crux of the problem. Well, that and the fact that the RIAA would probably cease all music licensing to Apple the second they tried something like this.
When you choose to buy music, movies or software without receiving a physical copy, you are giving up your legal right to re-sell them, because you have no way to prove that you are only re-selling them once: There's nothing tangible to offer up as proof. Aside from the fact that I like having a physical backup of my music, right to re-sell is the primary reason I buy CDs, DVDs and boxed software, instead of relying on downloads.
posted by caution live frogs at 8:09 AM on January 13, 2009
If I paid for a music CD, even a used one, and was given a disk of burned MP3 tracks instead of an original disk, I'd sure as hell ask for my money back and report it to the site manager. If this were OK to do nothing would stop anyone from selling the same tracks over and over. If I am buying a physical copy I expect a physical copy, which includes my right to sell said copy if I so choose.
gjc wrote "I wonder if iTunes could set up a 'used' section- you turn your songs back in for, say, a 25 cent credit."
Within 5 days of this happening, every song in iTunes would be available as "used", unless Apple limited each used song to one single resale, and even if they did that there would be an incredible number of complaints from people that clicked the "buy used" option but lost out to the person that clicked a millisecond before them. These songs aren't physical objects like a refurbished iPod. That's the crux of the problem. Well, that and the fact that the RIAA would probably cease all music licensing to Apple the second they tried something like this.
When you choose to buy music, movies or software without receiving a physical copy, you are giving up your legal right to re-sell them, because you have no way to prove that you are only re-selling them once: There's nothing tangible to offer up as proof. Aside from the fact that I like having a physical backup of my music, right to re-sell is the primary reason I buy CDs, DVDs and boxed software, instead of relying on downloads.
posted by caution live frogs at 8:09 AM on January 13, 2009
Best answer: Lawyer here, though I am not your lawyer. The majority answer here is right. You simply can't sell these songs legally. You signed a contract with Apple telling you the terms on which your music was licensed (yes, licensed, not purchased), and it doesn't allow resale of music. The first sale doctrine has nothing to do with it. You signed a contract limiting your rights. That's the end of the story.
posted by kingjoeshmoe at 8:58 AM on January 13, 2009
posted by kingjoeshmoe at 8:58 AM on January 13, 2009
Response by poster: Drag. Thanks though everyone!
posted by Effigy2000 at 6:55 PM on January 13, 2009
posted by Effigy2000 at 6:55 PM on January 13, 2009
This thread is closed to new comments.
I would think you'd get shut down since you would be operating in a dark-gray area here by creating & selling copies of IP you don't have the right to redistribute. Copyright law is pretty clear-cut here. You have the right, thanks to Apple, to PLAY the bits but not redistribute them, either on physical media or electronically.
how can I legally make money selling old music that I have legally downloaded and no longer want?
Craigslist comes to mind, though the same provisos above still apply.
Note that the non-DRM tracks you buy from Apple still have your account info encoded in them. To strip this, set your import options to whatever bitrate and encoder you want to have the stripped files in and then right-click and select the "Create XXX Version" to create a depersonalized copy of the songs. You can shift-click your library first and do this in a batch job.
Think of the $1 song you spent as buying the RIGHT to play the song, not buying the song per se. This right is non-transferable currently, though, morally, if you strip your ID and gift the songs to a friend that would be perfectly OK IMO.
posted by troy at 11:42 PM on January 12, 2009 [2 favorites]