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Selling an old pre-loaded iPod? RIAA says NO

Written by James Delahunty (Google+) @ 13 Feb 2006 20:01 User comments (26)

Selling an old pre-loaded iPod? RIAA says NO iPod fans have a dilemma; they love iPods, but Apple will keep making improved iPods so their own iPods will go out of fashion in very little time. When you decide to invest in a new iPod and sell on your old iPod, will you first delete all the music tracks from it? The Recording Industry Association of America (RIAA) better not catch you deciding not to delete the files first. Yes, the lobbying group behind thousands of lawsuits against P2P users, has found a new target.
"Selling an iPod preloaded with music is no different than selling a DVD onto which you have burned your entire music collection," the RIAA said in a statement. "Either act is a clear violation of U.S. copyright law. The RIAA is monitoring this means of infringement. In short: seller beware." Of course, the RIAA doesn't have enough man power to monitor every exchange of an old iPod from one person to another, but it can keep its eyes on auction sites.

A search on Craigslist and eBay brings up dozens of users selling old iPods that are full of music they had stored on it. Andrew Bridges, a lawyer who specializes in copyright and trademark law and who is one of eBay's many attorneys, believes there is no easy answer. "It really depends on the individual circumstances," he said. Of course a company set up to sell preloaded iPods or any other MP3 players on the market probably would be found in violation of the law.

"I'm not sure the law is settled. If I'm a college student and I want to supplement my income by buying 100 iPods and taking my CD collection and putting it on those iPods and selling them at a significant premium, that's probably not going to fly. But if I've had my iPod Shuffle for two years and I'm tired of it and I go out and buy a 60 gig video iPod and want to sell my old Shuffle, but don't want to purge the music first, that's probably legal." he added. He said he is aware of no case that deals with the issue.

"Normally, only a copyright holder has the right to distribute copies of a work," he said. "There is very clear provision in the statute that says that if you are in possession of a copy that has been lawfully made, you can distribute that copy without violating the copyright holder's copyright. That seems to suggest that there shouldn't be a case against a casual user disposing of copies they made for personal use when one is getting rid of one's own iPod."

Of course, the RIAA could never see eye to eye with such an opinion. Cary Sherman did seek to correct Bridges. "Both cases Andrew cites are different types of infringement, it's just that the damages are higher for someone engaged in it for commercial benefit versus someone who isn't," he said. "Unlawful reproduction or distribution is infringement. There is no fair use when someone is getting a complete copy of a work, especially a creative work and especially when it could have an adverse impact on the marketplace for selling or licensing that work."

He commented that if everybody were to own a CD, and also give away copies of the music, then record labels would only sell one CD.

Source:
MTV


Thanks to brolli666 for News Submission

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26 user comments

113.2.2006 20:56

Hmmm...this is a quandry. The thing is you can't really tell if a person who only sells a single ipod loaded with music is in it because he wants to make a profit or if he wants to simply get rid of it. There are so many ways to look at this kind of case that it makes my head hurt.

213.2.2006 21:00

Yeah that's really messed up.

Quote:
"Selling an iPod preloaded with music is no different than selling a DVD onto which you have burned your entire music collection," the RIAA said in a statement.
No, Selling an Ipod preloaded with music is no different than selling CD's on ebay. If the person payed for the songs and Ipod, than how is that not a legitimate use? That's just rediculous. The supreme court should get involved with that.

313.2.2006 21:13

I think oofRome that the RIAA is probably talking about music ripped from CDs more than music bought from like, iTunes. Tho that is an interesting point you made. Wonder how much your iTunes music isd actually worth to resell?

413.2.2006 21:20

here's an interesting possibility. say, myself, sisph and oofRome create a company that does this.... "Sells iPods preloaded with tracks we ripped off second hand CDs that we bought - CDs will be included with iPod and the cost overall is the ipod cost + the cd cost (not very profitable, but its make believe" The RIAA makes "NO MONEY" from that entiree service (yes they were compensated after the cd was originally bought, but the money from the consumer only benefits the seller of the second hand cd and apple)..... What's illegal; about that service? the ipod AND the second hand cd are included. Fair use is fair use, even if a label doesn't see a dime.. I'm off to get more sleep now but will be interesting to see what responses i got to this in a few hours ;-)

513.2.2006 22:09

What the hell is wrong with these people. They just never stop. Pretty soon you won't be able to sell a used cd on ebay unless the RIAA gets a portion of the sale. The need to go F**K themselves.

713.2.2006 23:02
wonderboy
Inactive

Actually Jasper that would be the MPAA that wouldn't like that. I have actually seen people at colleges selling Ipods preloaded for like a hundred bucks over the original price. I don't know very many people who can burn there entire collection of music onto a DVD or even a double layer DVD...

814.2.2006 0:52

It's not the iPods loaded with music that are the main problem, it's people selling their copied CD's "For backup purposes only.."

914.2.2006 0:53

Sit in folks, this is gonna be a long one.... @ oofRome: Seeing as money, the RIAA, and Apple are all involved I bet its gonna have to come down to the supreme court. And probably a lot more lobbying by interest groups and some more corporate/government corruption... @ dela I agree that fair use is fair use, but what the RIAA would say in our hypothetical "company" is that: 1. Someone circumvented copyright protection on the orignal cd(assuming we look at 'their' view of fair use). So that's bad... 2. Even though we make no profit, we do leave a money trail. Our profits split with us and the supplier of backup CDs (lets assume backups are legal) and Apple. The supplier buys more CDs from the RIAA and ipods from apple. Well, like you said "the RIAA makes "NO MONEY" from that entiree service". What they would want is a royalty fee every time the music changed hands regardless of whether you made money on it or not. DIAGRAM TIME!:(Arrows stand in for the word 'buys from') 1.Supplier -> RIAA (Profit to RIAA) 2.Our company ->Supplier (Profit to that guy) 3.People who buy our loaded ipods -> Our company (Profit, even if its little) BUT WAIT! After step 2... The RIAA jumps in and says "you can't make a profit with our stuff! We demand a royalty fee from you and your customers that goes to us since you made money off our stuff! Even if we didn't make any money we used their "intellectual property" so we'd have to fork over money anyway in royalties. Well, in my opinion you've accesed their intellectual property every time you play a song. Much less burn a song, sell a song, or share a song. One day they might sue your ass for singing a song you don't own a copyright to. That's why profit doesn't matter. You used it. You pay them. Or they hunt you down. You might as well pay them for each time you've played a song on a CD or an mp3. And if its a popular song...expect to pay more. Doesn't make sense, huh? Well, I have a friend who is studying business. Here's another situation not really similar, but in the same vein: Under US federal tax law you are required to pay interest on a debt even if its forgiven by the loaner. If I owe someone a million dollars, I owe tax to the federal government. If I make a few payements and the loaner forgives the debt, I STILL OWE THE TAX FOR ONE MILLION DOLLARS. Sisph-"I owe you a million bucks. Here's five." You -"It's ok, no big deal.Thanks for the five clams. The gov't gets 1 for interest." Gov't- "YOU STILL OWE ME THE TAX ON ONE MILLION DOLLARS EVEN IF YOU ONLY PAID FIVE AND WAS FORGIVEN! BWAHA HAHAHAAH!" I'm not too sure about the burecracy on this, and if I' m wrong, someone please correct me. ------------------------------------------------------ Now onto something else... What it all amounts to is that fair use rights are in peril and that you (Yes, you!) are getting the shaft. I swear, afterdawn or someone should start up our own lobbyist group, and not just the EFF or something like that. I mean a real political group that uses the same guerilla tactics in business and economics and policy as the RIAA and such. In my own imagination we could: -We could buy and sell stock causing shares to fall whenever they do something stupid. -Financially protect those who get sued by these idiots -Sue the RIAA back on some obscure legal loophole -Lobby so that fair use and consumer rights are just that, rights.

1014.2.2006 2:57

I've got 5 things to say to the RIAA. "Ha ha ha ha ha"

1114.2.2006 4:11
jmaestro
Inactive

Actually, you can legally sell Ipods loaded with your music CDs as long as you destroy the original CDs once the Ipod is sold. You don't have to destroy the CDs until the point of sale, and therefore couldn't get prosecuted by the government of RIAA for advertising the sale of a loaded Ipod (since at this point, the title of ownership is still in your name). It would be hard to prove that you DIDN'T destroy the cds after you sold the Ipod, and no one could expect you to destroy the CDs before you sell it. Basically, there is little measure to identify a guilty party, since this could only happen AFTER the sale, and by proving that the CDs still in the seller's possession (that should have been destroyed) were the ones that sourced the Ipod's music. I've studied business law, and am certain that this is true, any thoughts on my comments?

1214.2.2006 4:52

Talking Smack It doesn't take a seer but it will take a profit to see where this is all heading in the not-so-distant future. Before long, music is going to be considered to be contraband and regulated by the governments as a controlled substance. Anyone found to be in possession of music without a legal prescription from the RIAA will be thrown into prison along with the other malcontents. Do you say that the thought of serving a large number of years in the same prison cell as that heroin dealer makes you a little nervous? No worries, Mate, because his sentence is only half as long as yours will be.

1314.2.2006 7:28
Hawkwind
Inactive

I wonder why nobody to this point has seriously objected to ANY used CD's being sold on Ebay, Amazon, Half.com, etc. etc. since (for example) everyone I know that does sell used CD's has already ripped them to their hard drives. Are we to believe that the RIAA actually thinks people delete those ripped .mp3's before they sell the used CD? There's NO WAY they can ACTUALY THINK that people WILL DELETE THEM !! I mean, do they not live in the same reality? So why should they try to convince US that they think we're supposed to? WE KNOW that they know that we won't delete them, so why pretend? AAAAHHHHHH i'm going crazy!!!!

1414.2.2006 8:21

IMO there is nothing wrong with it but because the RIAA won't get any money then they will make it illegal. Selfish and greedy.

1514.2.2006 10:16

No point in selling an ipod with songs loaded on it because they will get erased when you plug it into ur computer. Unless backups re included.




sig made by AcidMagna

1614.2.2006 10:22

nitrous. There are a million and one ways you can work around that. I have a tutorial on it!

1714.2.2006 11:51

I have not used an iPod or iTunes. I do use an mp3 player with non-DRM infected mp3s. If someone sells an iPod with iTunes songs on it (I know this is illegal, the DMCA subverted the right of first sale doctrine) what happens when the new owner puts the player into the dock (with the sync feature turned off obviously). Will the songs still play? Anybody know?

1814.2.2006 13:08

I don't see this as any different than if I were to decide to give my CD collection away. It's none of their damn business since I paid for these songs, I can give them to anyone I damn well want to. Just the same as if I were to decide to give away my car or my PC or whatever else I decided to give away. If they are allowed to retain the rights to the durable goods that I paid them for, then I deserve the right to maintain ownership of my money. Just like they claim with their product, I demand the right to sue them for damages if they give the money I paid them away as payment or whatever, to anyone else i.e. it must never be taken out of their bank account or else they are in violation of the same asinine principle that they are trying to claim is their legal right. I could almost stomach this BS if at least it were the artists who created the musical product retaining the rights, but not the freaking record label millionaires who somehow also have the right to rip-off the recording artists as well. Politicians and Recording Industry executives may be the strange bedfellows, but it is you and I, the consumer, who is really getting screwed!

1914.2.2006 13:32

Freshguy - The difference between this and selling a car is that you get to keep the origionals.. You can give music away as much as you wish, but in this case you are keeping back-ups hence preventing the reciever of the iPod from buying any of the music you have loaded onto it..

This message has been edited since its posting. Latest edit was made on 14 Feb 2006 @ 13:33

2014.2.2006 16:19

Don't get caught whistling a tune at work or the RIAA will be by to delete the songs from your mind. One would think that at some point these absolutely clueless people would take the hint. No matter WHAT they do, no matter who they arrest people will still listen to what they want, when they want, on the device that they want. They would be much better served if they embraced this and found a LEGIT way to make a FAIR buck from it. And some decent new music wouldn't hurt.

2115.2.2006 6:06

Thanks Lethal, You're right. I was mistakenly treating the iPod files as if they were the original source files. Even taking this into account, I really do have a problem with the premise as it is being presented for us by the RIAA representative. Cary Sherman is voicing his opinion as he is obviously entitled to do so, but he doesn't make the laws. Why should the RIAA be entitled to any type of windfall from this sale of an iPod? The person selling the iPod presumably paid the RIAA for the original files initially and it was he who provided the labor and physical resources that brought these iPod files into existence. The buyer is not purchasing the music files, they are merely a consequence of this particular iPod sale. It would have to be proven by the RIAA that they were deprived of revenue from the sale of these files. That would seem to be impossible for them to do so as first of all there was no revenue generated by these iPod files. Secondly, the RIAA is guilty of making the baseless assumption that the seller would have purchased these iPod files had they not been left on the iPod. This is the same intentionally misleading assumption that the RIAA makes when they disingenuously claim the monetary figures they present as their losses from P2P filesharing. In their estimation, every single file that is shared by anyone at anytime is revenue that they claim would have been a guaranteed sale 100% of the time. For example, if 10 different people download 1 song today using Limewire, the RIAA counts that as 10 sales that they were deprived of revenue from. If you were to accurately gauge their losses based on the sales figures of non-filesharers, that number would be maybe 2 sales lost. This means that 80% of the money that they claim they are losing to filesharers or anyone else for that matter, is money from sales that would never have been made to begin with. Thirdly and lastly, I can't see why the RIAA feels that they are entitled to a cut of every single song that has at any time happened to fall into their possession, even after they have been compensated for these songs by the consumers. If this is indeed how the copyright laws actually are applied, then these laws are a farce as they are totally unjust to the consumer and are in need of being repealed. If the lawmakers send us to our rooms and tell us to eat cake then they most likely are losing their heads over these issues.

2217.2.2006 9:54

Can I sell "used" printable DVD+-Rs? I bought them legally. Their intended purpose is to have data written onto them & ink jetted onto their faces. Once I do that, they no longer have their original value to me, which was ~$0.50/ea. But using RIAA's own business model, my cost has NOTHING to do with the selling price I can ask. So let's say I want to sell my "used" DVD+-Rs for $5/ea. Do I then have to pay the disc manufacturer royalties because I'm profiting from the sale of his intellectual property (the design & construction of the disc)? What about the ink manufacturer who came up with the idea for the colors? Who ELSE is entitled to "royalties" from me selling used iPods or ANYTHING else?

2324.2.2006 4:06

If they charge a price that is just for the ipod and they are not charging extra for the music; then they are not really selling the music; are they? I doubt anyone's taste in music would completely match another's. The RIAA is just getting way too greedy and should leave some things alone; or at least have to prove the actual music was being resold. Everybody does own a CD. Everybody sometimes gives away copies of the music. Record labels still sell more than one CD.

2425.4.2006 7:52
mrsppinaa
Inactive

this is very interesting. for one;i dont know if they have gone after anyone in the carribbean as yet. BUT my question is. would the same apply to reselling vinyl records? if i bought my records decades ago and value has gone up if i sell them to someone for the the value(profit} that they have gone up i may go to prison(i am poor and afford big lawyers}.

2525.4.2006 9:14

mrsppinaa No. You can legally sell anything you have legally bought as far as records go, as long as you don't keep a backup for yourself in any way, shape or form.

264.8.2006 8:26

In another life, I used to be involved with the artsy-craftsy crowd. In the 70s, this group was lobbying to get a percentage of any re-sale of their art work. If the original buyer of a sculpture which was purchased for $200.00 and sold to buyer #2 for $400.00, then the original artist was to get 25 percent of the sale or #100.00. While it is true there is no copying going on, the RIAA and the MPAA lawyers seem to be edging towards this scenario. I used to have some Elvis recordings on the original Sun label. Original price was $4.45 for each record. Around 1972, I sold the records to a collector for a little over $1,000.00.If one takes the studio lawyer's thinking 1/2 step further, I would owe the RIAA a big chunk of change. The same could be applied to just about any object one could think of. I overheard a discussion where one does not purchase anything but leases it. This means that no matter what it is, CDs, DVDs, cars, homes, etc, etc, would still remain in the originator's ownership. When one is ready to get rid of whatever 'it' is, it is turned back to the originator and a small amount of money is returned to the leasee based on the original cost of the lease. As it is with many software packages now, the use of said item cannot be transfered to another user without permission from the originator. What this does is give the originator/owner complete control over their product. If an item becomes a collector's piece, the originator can lease it to someone else for a higher price. This all sounds far fetched but these people were dead serious in figuring out a way to impliment such a plan. perfect for the RIAA and MPAA style of thinking...

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