Git yer preloaded iPods on eBay (but are they time bombs?)

Git yer preloaded iPods on eBay (but are they time bombs?)

Summary: Warning: This blog entry substitutes the acronym CRAP where the term DRM might normally have appeared. (read why).

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TOPICS: Apple
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Warning: This blog entry substitutes the acronym CRAP where the term DRM might normally have appeared. (read why).  By way of Slashdot comes an alert to Kevin Maney's piece in USA Today about the legality of selling preloaded iPods.  Wrote Maney:

A 60-gigabyte video iPod loaded with 11,800 songs, with a starting bid of $799. The iPod alone would cost about $400. "I don't see how it's different than selling a used CD," seller Steve Brinn, a Cincinnati pediatrician, wrote in an e-mail to USA TODAY. "If the music industry asked me not to do it, I just wouldn't do it." After USA TODAY asked eBay about the listing, eBay removed it. "That is a copyright violation, one that we don't even need to hear from the rights owner about before removing," says eBay spokesman Hani Durzy.

But is it? Why is selling a pre-loaded iPod any different than selling a used CD? It could be.  It probably depends on the seller.  For example, nothing prevents an iTunes user that has purchased 11,000 songs (via the iTunes Music Store) from buying iPods, loading those 11,000 songs into those iPods and then selling them. If the songs are in MP3 format, well, then reselling them is probably a violation of copyright law (depending on whether each song's artist or record label has explicitly allowed that). Before synching with a new iPod, iTunes doesn't force you to return the previously loaded iPod to the "cradle" for de-authorization and bulk-erasure. Apple is pretty much forced into allow synching with multiple iPods because it has no way of knowing whether you've purchased a new one or not (maybe the old one was broken or lost).  But maybe now that a new so-called analog hole to Apple's CRAP has been discovered, the company will figure out a way to update its CRAP.

More importantly, buyers of pre-loaded iPods should beware.  The way the Fairplay-based CRAP technology in Apple's iPods and iTunes works, the retention of that music is tied to the digital identity of the owner (in iTunes' parlance, this is known as an "account").  At the very minimum, if those songs are protected by Apple's CRAP technology, then those songs are trapped in that iPod and can't be played anywhere else (at least not without some special tools that circumvent the CRAP technology -- a process which, according to the Digital Millenium Copyright Act anti-circumvention provisions, is illegal).  No matter how you look at it, buying pre-loaded iPods is a bad idea.  And you can thank Apple's CRAP for that.

Topic: Apple

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  • Negativland iPod has similar issues

    Full details here:
    http://www.wired.com/news/culture/0,1284,66725,00.html

    Mind you, that one came loaded with music, and came with the original cds the music was loaded from, and yet ebay still took it down.
    tic swayback
  • Why is selling a pre-loaded iPod any different than selling a used CD?

    [i]Why is selling a pre-loaded iPod any different than selling a
    used CD?[/i]

    Because selling a pre-loaded iPod is like NOT like selling a used
    CD. It is like selling a pile of tapes!

    The music on the iPod is by definition a "copy" while the
    "original" is still on the user's computer. If you sell a copy of
    your music on a recordable media, be it tape, CD-R or an mp3-
    player, you're in violation of about every copyright law in the
    world.

    [i]nothing prevents an iTunes user that has purchased 11,000
    songs (via the iTunes Music Store) from buying iPods, loading
    those 11,000 songs into those iPods and then selling them.[/i]

    Nothing, except the ITMS EULA, which states:

    [i]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 five Apple-
    authorized devices at any time.

    You shall be entitled to export, burn (if applicable) or copy
    Products solely for personal, noncommercial use. You shall not
    be entitled to burn Video Products.

    You shall be authorized to burn an audio playlist up to seven
    times.

    You shall be able to store Products from up to five different
    Accounts on certain devices, such as an iPod, at a time.

    Any burning (if applicable) 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 in any audio or video content, sound recording,
    underlying musical composition, or artwork embodied in any
    Product.

    You agree that you will not attempt to, or encourage or assist
    any other person to, circumvent or modify any security
    technology or software that is part of the Service or used to
    administer the Usage Rules.

    The delivery of Products does not transfer to you any
    commercial or promotional use rights in the Products.[/i]

    So even if I can sell my iPod, I can't sell the music on it.
    Jens T.
    • Music is IP

      When you 'buy' music, you're buying the right to listen to it, you're not buying the IP. Someone wrote the music, They have the copyright. You don't. You want to acquire the rights to do so, go ahead, but don't think you can hijack someone's rights by strength of will alone. "Record companies charge too much" is not an effective argument for stealing an artist's rights. My rant is done.
      jeffbart
      • See My Post Bellow

        That is not how copyright works.

        You have a right to sell your copys. Copyright already differentates between the copy and the rights behind the work while still allowing you to sell the copies.

        WHat the RIAA and Apple are claiming runs contrary to the law.
        Edward Meyers
      • The Section That Allwos You To Sell Your Copies

        Couple this with the other post;

        "? 109. Limitations on exclusive rights: Effect of transfer of particular copy or phonorecord40

        (a) Notwithstanding the provisions of section 106(3), the owner of a particular copy or phonorecord lawfully made under this title, or any person authorized by such owner, is entitled, without the authority of the copyright owner, to sell or otherwise dispose of the possession of that copy or phonorecord. Notwithstanding the preceding sentence, copies or phonorecords of works subject to restored copyright under section 104A that are manufactured before the date of restoration of copyright or, with respect to reliance parties, before publication or service of notice under section 104A(e), may be sold or otherwise disposed of without the authorization of the owner of the restored copyright for purposes of direct or indirect commercial advantage only during the 12-month period beginning on ?

        (1) the date of the publication in the Federal Register of the notice of intent filed with the Copyright Office under section 104A(d)(2)(A), or

        (2) the date of the receipt of actual notice served under section 104A(d)(2)(B), whichever occurs first.

        (b)(1)(A) Notwithstanding the provisions of subsection (a), unless authorized by the owners of copyright in the sound recording or the owner of copyright in a computer program (including any tape, disk, or other medium embodying such program), and in the case of a sound recording in the musical works embodied therein, neither the owner of a particular phonorecord nor any person in possession of a particular copy of a computer program (including any tape, disk, or other medium embodying such program), may, for the purposes of direct or indirect commercial advantage, dispose of, or authorize the disposal of, the possession of that phonorecord or computer program (including any tape, disk, or other medium embodying such program) by rental, lease, or lending, or by any other act or practice in the nature of rental, lease, or lending. Nothing in the preceding sentence shall apply to the rental, lease, or lending of a phonorecord for nonprofit purposes by a nonprofit library or nonprofit educational institution. The transfer of possession of a lawfully made copy of a computer program by a nonprofit educational institution to another nonprofit educational institution or to faculty, staff, and students does not constitute rental, lease, or lending for direct or indirect commercial purposes under this subsection.

        (B) This subsection does not apply to ?

        (i) a computer program which is embodied in a machine or product and which cannot be copied during the ordinary operation or use of the machine or product; or

        (ii) a computer program embodied in or used in conjunction with a limited purpose computer that is designed for playing video games and may be designed for other purposes.

        (C) Nothing in this subsection affects any provision of chapter 9 of this title.

        (2)(A) Nothing in this subsection shall apply to the lending of a computer program for nonprofit purposes by a nonprofit library, if each copy of a computer program which is lent by such library has affixed to the packaging containing the program a warning of copyright in accordance with requirements that the Register of Copyrights shall prescribe by regulation.

        (B) Not later than three years after the date of the enactment of the Computer Software Rental Amendments Act of 1990, and at such times thereafter as the Register of Copyrights considers appropriate, the Register of Copyrights, after consultation with representatives of copyright owners and librarians, shall submit to the Congress a report stating whether this paragraph has achieved its intended purpose of maintaining the integrity of the copyright system while providing nonprofit libraries the capability to fulfill their function. Such report shall advise the Congress as to any information or recommendations that the Register of Copyrights considers necessary to carry out the purposes of this subsection.

        (3) Nothing in this subsection shall affect any provision of the antitrust laws. For purposes of the preceding sentence, ?antitrust laws? has the meaning given that term in the first section of the Clayton Act and includes section 5 of the Federal Trade Commission Act to the extent that section relates to unfair methods of competition.

        (4) Any person who distributes a phonorecord or a copy of a computer program (including any tape, disk, or other medium embodying such program) in violation of paragraph (1) is an infringer of copyright under section 501 of this title and is subject to the remedies set forth in sections 502, 503, 504, 505, and 509. Such violation shall not be a criminal offense under section 506 or cause such person to be subject to the criminal penalties set forth in section 2319 of title 18.

        (c) Notwithstanding the provisions of section 106(5), the owner of a particular copy lawfully made under this title, or any person authorized by such owner, is entitled, without the authority of the copyright owner, to display that copy publicly, either directly or by the projection of no more than one image at a time, to viewers present at the place where the copy is located.

        (d) The privileges prescribed by subsections (a) and (c) do not, unless authorized by the copyright owner, extend to any person who has acquired possession of the copy or phonorecord from the copyright owner, by rental, lease, loan, or otherwise, without acquiring ownership of it.

        (e) Notwithstanding the provisions of sections 106(4) and 106(5), in the case of an electronic audiovisual game intended for use in coin-operated equipment, the owner of a particular copy of such a game lawfully made under this title, is entitled, without the authority of the copyright owner of the game, to publicly perform or display that game in coin-operated equipment, except that this subsection shall not apply to any work of authorship embodied in the audiovisual game if the copyright owner of the electronic audiovisual game is not also the copyright owner of the work of authorship."

        This is why we call it CRAP.
        Edward Meyers
      • Re: Music is IP

        [i]When you 'buy' music, you're buying the right to listen to it, you're not buying the IP. [/i]

        When you buy music you're buying that particular licensed fixation of the IP.

        When you buy the latest nuclear-powered, glow-in-the dark, fuel-injected razor blade handle, that's a fixation of IP, too.

        It's no more illegal to copy and distribute the IP on the CD than it is to do with the IP in the razor blade handle.

        How come no one says you can't sell your razor handle? How come no one says that when you buy a razor blade you don't really own it, you're only buying the rights to shave with it?

        Because it would be a ridiculous thing to say, that's why.

        And it's a ridiculous thing to say about CDs and DVDs, too.







        :)
        none none
    • This Is Not Entirely True

      EBay won't sell any copy from iTunes even if it is the only copy. If the iTune went straight into a hard drive from the download Apple will prevent you from selling it.

      "? 202. Ownership of copyright as distinct from ownership of material object

      Ownership of a copyright, or of any of the exclusive rights under a copyright, is distinct from ownership of any material object in which the work is embodied. Transfer of ownership of any material object, including the copy or phonorecord in which the work is first fixed, does not of itself convey any rights in the copyrighted work embodied in the object; nor, in the absence of an agreement, does transfer of ownership of a copyright or of any exclusive rights under a copyright convey property rights in any material object."

      http://www.copyright.gov/title17/92chap2.html#202

      This entire licensed and not sold junk is on my nerves. Many are claiming that copyright does not see a difference in a copy and the rights to the original- As shown above this entirely is not true.

      The Point being if you have 50,000 itunes on a hard drive and they are the only copies YOU SHOULD be able to sell them.
      Edward Meyers
      • Interesting concept ...

        [i]Ownership of a copyright, or of any of the exclusive rights
        under a copyright, is distinct from ownership of any [b]material
        object[/b] in which the work is embodied. "[/i]

        Interesting question: Do files on a harddisk constitute a
        "material object"?

        But anyway, it seems to me that ? 20 talks about that selling
        copyrighted work on some form of media doesn't automatically
        transfers the copyright [i]itself[/i] to the buyer.

        [i]"Transfer of ownership of any material object, including the
        copy or phonorecord in which the work is first fixed, does not of
        itself convey any rights in the copyrighted work embodied in the
        object"[/i]

        Which means if I buy a CD, I [i]don't[/i] have the copyright to
        that music on said CD. This has nothing to do with the question
        whether I can sell my iPod pre-loaded or not.
        Jens T.
        • Right of first sale

          ---Which means if I buy a CD, I don't have the copyright to
          that music on said CD.---

          True, you don't get the rights granted by copyright. But you do
          have the right of first sale, which allows you to re-sell your
          purchased copy of a book, video, cd, etc. There are technical
          hurdles to selling an iTunes purchase, but it has been done.
          tic swayback
        • Section 109

          Section 109 gives you the right to sell your copies. The distribution rights of the copyright holder end when they sold it to you (See above post).

          In essence if you downloaded directly to the iPod and that is the only copy- under the law you should have the right to sell it.

          You don't, but not becuase of copyright law, but rather the way they are using contract law. Also read the EULA- Nowhere in the EULA do they mention making copies, however in order to download you make a copy , in order to transfer to an iPod you make a copy, in order to even play back digital music you mjust make digital copies in the RAM. The reason why they do not mention copy in the EULA/TOS is becuase of preemption. If you make the contract cover exclusive activities of a rights holder you have to allow the limitations of exclusive use- however if your activities are not covered in section 106, exclusive rights, and and the state allows enforcement of what you are selling/licensing then you can get away with putting anything you want into the contract and limit consumer rights in order to obtain this new "right" established in the contract. They can pretty much get away with anything unless they go to far- such as restricting free speech, and even then its 50/50.

          The real answer is that the BSA/MPAA/BSA have all made a mess of copyright by using these contracts- becuase it bounces it back to state law- and we are no better off now due to this than before the 1976 Copyright Act as states are not consitant on ruling on the enforcability of these contracts (Split 60/40 enforcable/non-enforcable and with some districts, and even specific judges, rulling opposite ways in different cases.)

          The problem with CRAP is that it allows the person who is distributing the work to decided completely what can be done without any regard to any law. Copyright has many exceptions where a copy made be made- yet CRAP can be used to prevent all copies.
          Edward Meyers
          • Really?

            That's not how I read it:

            [i|(a) Notwithstanding the provisions of section 106(3), the
            owner of a particular copy or phonorecord lawfully made under
            this title, or any person authorized by such owner, is entitled,
            without the authority of the copyright owner, to sell or otherwise
            dispose of the possession of [b]that copy[/b] or phonorecord.[/i]
            (Emphasis mine)

            To me it says "You (the consumer) can sell this CD (which is in
            itself a copy of the original master tape) without having to ask
            me (the holder of the copyright)."
            Jens T.
          • Ah Yes

            But under the TOS you have negotiated that right away in order to use the material. The TOS may not be legaly binding but yet the CRAP will prevent you from that right anyhow.

            It is slimey and not fair- but some courts have upheld it.

            Then again in those cases you are not commiting copyright infringement but rather breaking your contract.

            I agree with you:

            You should have the right to sell it but the RIAA has weaseled in a way to try to prevent you from that right- which 40% of the time the judges have agreed with but 60% they haven't. In otehrwords they have stolen your rights from you.

            This is the real reason for CRAP- to steal your rights, not to prevent piracy.
            Edward Meyers
          • Agreed

            Let's agree on one thing: Yes, you [i]should[/i] have the right to
            sell your (bought) iTunes collection (provided there is some
            sensible way of proving that you didn't keep a copy of those
            items).

            Where I disagree is the notion that somehow Apple is
            responsible for this CRAP. If you look around, you would be
            hard-pressed to find a more [i]liberal[/i] DRM-policy [i]anywhere
            [/i] (unless you prefer the NAPSTER way where your music just
            evaporates if you forget to pay your monthly fee). The simple
            fact is: without [i]some[/i] form of DRM (or CRAP if you prefer)
            there simply would be no iTunesMusicStore. You may not
            consider that a loss, but for me it surely beats paying artificially
            inflated prices for CDs id I just want ONE song from an album ...
            Jens T.
          • Not True

            There are CRAP-less Music Stores

            http://magnatune.com/

            as just one of many examples.

            Also the last CD I bought, from a RIAA-less band- contains Ogg formatted digital music files on top of the normal CD and unencumbered MP3's.
            Edward Meyers
          • Not True?

            [i]There are CRAP-less Music Stores

            http://magnatune.com/

            as just one of many examples.[/i]

            Well, I'm sure there are also lots of other websites that will even
            give away their music for free, just so that at least [i]somebody[/
            i] is listening to their stuff. But if I'm rather underwhelmed by
            "Ehren Starks: piano and cello jazzy new age." or anything of
            that caliber, I think the iTMS is just fine, thank you.
            Jens T.
          • Until They Change The TOS Again

            One of the many problems with any of the CRAP stores is that the TOS can unilaterally be changed by the CRAP controler.

            "iTMS is just fine"...

            you should say it is tolerable, to you (Not Everyone), as it is at this point in time. Apple has already changed the TOS once due to RIAA pressure- it is highly probable they will do so again becuase of RIAA Pressure. You won't have any legal choice, or recourse, but to conform to the new TOS- as it is enforced with CRAP and breaking CRAP violates the DMCA CRAP provisions.

            Others HAVE HAD problems with iTMS. Ebay pulling the iPod full of songs without even asking if they were legit IS A HUGE problem. Also not stated here is that when Apple first rolled out iTMS someone tried to sell a single iTMS on EBay and just like this time Apple had it pulled due to "Copyright" issues (Claiming to resell your iTMS song violated copyright). Apple finally said that it "May" be legal to sell your iTMS- but read the links posted here in this discusion on what one has to do to do so (BTW- Joe Average would not be able to figure it out).

            This whole RIAA nonsense about wanting to further errode consumer rights or they won't relaese their product to the market... Everytime a new technology comes they claim the same thing. I would say to them- FINE KEEP IT as someone else will sell their works using this new technology and supplant them. The problem is that several congressmen are to weak to resit the lobbyist.

            BTW- the new proposed laws that congress are debating now would prevent you from transfering songs from your CD or radio to your iPod. All this paid with money you gave the RIAA by purchasding their CRAP laden "product" from iTMS.
            Edward Meyers
          • When they change the TOS ...

            ... I will have burned all my purchased songs to CD, rightfully. :-)

            [i]Ebay pulling the iPod full of songs without even asking if they
            were legit IS A HUGE problem. [/i]

            Not really. Since the songs on an iPod are [i]by definiton[/i] a
            copy, they couldn't possibly be legit.

            [i]All this paid with money you gave the RIAA by purchasding
            their CRAP laden "product" from iTMS.[/i]

            No, this is paid by the billions of people who fork over totally
            inflated prices for CDs (regardles whether they are root-kit
            infested crap or pure Red-Book-compliant discs).
            Jens T.
          • Do The Math Again

            An iTune cost how much again?? Let me refresh your memory it is $ 0.99 per song.

            A CD has how many Tracks 12-15. At Wal-Mart the price of a new CD is $7.50-14.88 (Except for the Public Domain, or near PD, ones that sell for $1-3 in the front of the store which I won't go into here- Most of The Top 40 Artist CD's being priced at $9.72 or $12.78 ) So in fact you could pay more through iTunes than at Wal-Mart for your Music (Really you are anyhow becuase the CRAP reduces the value of your purchase). Now that we have established that the USER could pay more with iTunes... How much money does it cost to manufacture a CD with its case and printed label... It just so happens that the RIAA claims that it costs $6.00 to manufacture one. How much does it cost to ship it? and so forth and so forth... compare this with $0.99 per track they will sell to you- how much are they saving through this (HINT it is a lot)- Even without CRAP the user is getting a poor deal.

            Now as to your copy assertation- It does not matter that it is a copy. A CD is a copy. The way copyright law is written you have the right to sell the copies that they have sold to you... that is unless- Now wait for it... Through iTMS you are not really buying your music either but getting it in a lease-like condition with just longer terms than the other services hence Apple is defruading the consumers. Either that or you do own the copy and can sell it- just like a CD.

            Finally what will you do when the TOS changes and that upgrade won't play any of your recorded songs. FYI- This is a real possibility as the RIAA has intoduced a bill in congress that would require that this function be stripped from the iPod, or it will become ilegal to sell iPods.
            Edward Meyers
          • Also You Never Heard Of the 7 Inch 45 RPM?

            Music singles were common until the late 90's when the RIAA publishers moved to CD. The old record single 7" 45 contained 2 songs per side although sometimes the back was the same as the front. This format carried over into Tape and sold until the Labels- canned singles altogether.

            Even in the early 90's you could still get cassette singles for about $.99-3.99 (They had 2-4 songs on them). The $0.99 price point for an iTune didn't come out of thin air- as that was effectively the price point of 1 track on a single cassette before the Labels stopped selling singles.
            Edward Meyers
          • Really?

            That's not how I read it:

            [i](a) Notwithstanding the provisions of section 106(3), the
            owner of a particular copy or phonorecord lawfully made under
            this title, or any person authorized by such owner, is entitled,
            without the authority of the copyright owner, to sell or otherwise
            dispose of the possession of [b]that copy[/b] or phonorecord.[/i]
            (Emphasis mine)

            To me it says "You (the consumer) can sell this CD (which is in
            itself a copy of the original master tape) without having to ask
            me (the holder of the copyright)."
            Jens T.