Does the Right of First Sale Still Exist?

I just posted an eBay auction for a song I bought from the iTunes music store. It should be interesting to see how this works out. I only spent $0.99 on it but I bought the song just as legally as I would a CD, so I should be able to sell it used just as legally right?

[Update 09-05-2003 2:17 PM]: Did anyone happen to grab a list of the bidders? I want to get in touch with legitimate bidders, if you were one please contact me. [OK, I got one, thanks!]

[Update 09-05-2003 8:42 AM]: Just so there wouldn’t be any hard feelings between us I decided to buy something on eBay.

[Update 09-04-2003 5:51 PM]: HTML Archive, courtesy Become The Media.

[Update 09-04-2003 3:02 PM]:
My GPG signed response:
I do not believe that my auction violates the downloadable media policy, I posted in my auction that I would not be violating it. I specifically ammended [forgot to run ispell] the auction to state that the buyer would not receive the item in question over the Internet.
Please reinstate my auction ASAP.
George Hotelling

[Update 09-04-2003 2:52 PM]:
Dear George Hotelling (me@mydomain.tld)
PLEASE READ THIS IMPORTANT EMAIL REGARDING YOUR LISTING(S)
We would like to let you know that we removed your listing(s):
2555673237 Double Dutch Bus by Devin Vasquez
for violating our Downloadable Media Policy. Please read our Downloadable Media Policy here:
http://pages.ebay.com/help/policies/downloadable.html
We have credited any associated fees to your account. We have also notified the bidders that the listing(s) was removed, and that they are not obligated to complete the transaction.
If you relist this item, or any other item that violates eBay policy, your account could be suspended.
If you believe your listing was removed in error, please let us know by replying
to this email with supporting information.
Thank you for your cooperation.
Respectfully,
Customer Support (Trust and Safety Department)
Ebay Inc.

[Update 09-04-2003 12:08 PM] I’d like to apologize to eBay user shopatbanks for erroneously canceling his bid. While trying to weed out the fake bidders, I removed him as well. He says he was committed to his bid and I thank him for trying to put his money where my mouth is. Now if I can just find the guy who bid $99 million to see if he’s legit…

[Update 09-03-2003 7:44 PM] Please don’t bid unless you are willing to pay the money. While this is an interesting auction, it is certainly not a joke – that’s the whole point. I’m fine with the winner donating directly to eBay the EFF [typo or freudian slip?], but may request some money to cover the cost of the eBay auction if it gets too out of hand and I can’t afford it. [The cost of the auction is a function of the ending price, which is why I want to see legitimate buyers only. eBay will get its cut, unless they waive auction fees when the profits go to non-profits.]

[Update 09-03-2003 4:21 PM] I have about one good idea a year. I hope this was it.

[Update 09-03-2003 11:25 AM] A very excellent comment below by Piggly Wiggly asks if I will convert the format for delivery. My answer right now is “no” because I don’t want to cloud the issue of the sale by changing the format. Also, I’d like to thank all the people posting supportive comments who realize that this is about more than a $0.99 song being over-valued on eBay.

[Update 09-03-2003 11:25 AM] I’d like to respond to a few points made by people:
1. It’s true that I’m seeking attention, but not for me personally. This is an experiment in property rights in the digital age, something that’s gotten surprisingly little attention.
2. I’ve read the iTunes agreements and found nothing denying transferability. This isn’t any more a commercial venture than selling CDs at the local music store, I’m not incorporated or even DBA. Furthermore, in case anyone thinks this is a cheap way to make a buck I will be donating all profits to the EFF.
3. When the song is successfully transferred, I will not be keeping a copy of the song. If I don’t own it I shouldn’t have a copy.

[Update 09-03-2003 10:08 AM] Right now I’ve come up with a couple ways that the transfer of ownership could take place. One is to call up Apple and ask them to do it for me, which would be an interesting call. The other way would be to give my account to the winning bidder, which doesn’t seem like a bid deal considering that I’ve only purchased one song. Still, I’d have to make sure that my credit card info was completely disassociated with the account. Or I could just create a new account and repurchase the song on that account.

271 thoughts on “Does the Right of First Sale Still Exist?

  1. Update on iTunes Sale

    Just figured that since the majority of the world gets its news from my blog, I’d follow up on George Hotelling’s quest to sell an iTunes song. His auction cancelled by eBay, George has continued to gather sufficient coverage from…

    Like

  2. Hey, I thought this was a great idea, I think the failure came when you failed to provide ebay with your means of distributing the song. I thought about for a while and figured out possibly the easiest way to accomplish the task without violating the their digital media rule. Open the file in a hex editor, print out the file, and specify that it will arrive on paper and that the buyer must have a scanner with some type of OCR software to re-digitize it.

    Like

  3. I agree with George and that I believe something like this is, in theory, a legal sale provided there is a mechanism by which to remove all traces of the file from his computer and has a way to transfer the “playability” of the file to the buyer.
    However…I really don’t like seeing this, because if by some quirk, this is allowed to happen and the RIAA can’t stop it, all that will do is have them pull the plug on the ability of people to purchase individual songs. And then we’ll be back to the same old choices as before: to buy the CD with “90% crud” at $15 a pop again, pirate the tracks you want or do without.
    The ability to purchase individual songs without buying all the crap you don’t want is one of the best things that has happened to music consumers in a long time and is one of the few (if not only) consumer-friendly things the recording industry has done in recent years. And as much as I despise the jackbooted thugs of the RIAA along with the rest of you, I believe that in the end, if George’s attempts are successful, it will be to the detriment of music consumers who want to do the right thing, but don’t want to pay for the crap they don’t want.
    If this succeeds? Bye-bye, ITMS and other services like it, IMO. Not good.

    Like

  4. An interesting point: many people have stated that nobody would want to sell a $0.99 song for less and nobody would buy it for more… why wouldn’t someone sell a .99 song for less? I’ve paid .99 for a CD and I’ve paid $100 for a CD, why did someone sell a cd for .99? why did I pay $100 for a CD (it was a rare import) but it becomes more clear if you think this way: I have 5000 songs from Itunes on my computer and one day I lose my employment. I need money, I want to sell my mac, but the buyer doesn’t want to pay extra for the music, so I sell the library of music that I paid almost $5000 for, I sell it for $2500 – that’s .50 per song. That’s not me losing $.49, in actuality I’ve lost over $2000, but on the other hand I’ve turned a $5000 library that I would have thrown out into $2500. and this is just one instance of a GOOD reason to allow someone to sell the item. Note that the songs on Itunes are not CHEAP, an album costs $9-15 much like its CD counterpart… we’re not getting off easy. On the other hand we are getting more value in a way in that we can only buy the two or three songs we like off an album, this may actually lower the costs of recording companies as they only record “single-quality” songs and whole albums vanish along with “filler” songs that are sub-standard when recorded and always known to be sub-standard. (by the way, bands won’t stop writing these songs, just the commercial route to getting these songs will dry up)
    anyhow, someone just dropped $2500 for a library of songs that would have cost double that if they had gone to iTunes Store and bought them, seems like they made out and I’ve got $2500 extra in my pocket to buy food and pay the electric bill while I try to come up with something new to do to make money. Otherwise I have a “license” for 5000 songs and I’m hungry, cold and my TiVo has no electricity. Can I sue Apple for that? Um, you know – the TiVo bit… TiVo owners know what I’m talking about – damages for emotional anguish.

    Like

  5. Selling in the Digital Age

    Found at: Blogcritics.org: Selling iTunes After all the hypeand press that some guy got for trying to sell a music file he purchased from iTunes, and ebay cancelling his auction because they claimed it broke one of their terms and…

    Like

  6. Testing the legal boundaries of the AAC format

    My boyfriend George is winning his 15 minutes of internet fame with his latest argument: “I just posted an eBay auction for a song I bought from the iTunes music store. It should be interesting to see how this works…

    Like

  7. George’s i-tunes track reaches $15,000 on ebay

    George’s iTunes m4p has reached a bid of $15,000 on ebay. Either there are a lot of wingnuts putting in bids for fun, or someone is really really committed to some fuzzily formulated anti-hegemonic principle or other. Either that, or…

    Like

  8. Testing Ownership of Digital Music

    Let’s pretend we are deeply naive for a second: when you buy a CD, are you buying the music it contains? Or an aesthetically value-added material object that enables you to access the music? i-Tunes (and other online digital music…

    Like

  9. Trust And Safety Department

    LINK: Go George! Go! This tickles me to no end because it has the potential to cause total chaos. Big business wants to use the net for commerce but they haven’t really thought out the implications of trafficking in digital…

    Like

  10. Bookmark cleanup

    It’s that time again! It’s time to prune hundreds of dead links, junk, duplicates, etc. However, there are still ones I can’t let go. Therefore, they will be here to collect dust until someone searches for it. Office for Science…

    Like

  11. SongBuddy

    If you’re sick of what the radio (particularly Clear Channel stations) has to offer, and you’re looking for some new artists to refresh your palate, check out SongBuddy. SongBuddy was developed by the witty and creative George Hotelling who also…

    Like

  12. Reselling AAC files from Apple’s Music Store

    George is conducting an experiment on the ownership rights of downloaded music. Specifically, purchased AAC files from Apple’s music store. You can bid on his AAC file on eBay, but be forewarned that he only payed 99 cents for…

    Like

  13. Exactly. In law, it is generally considered that you cannot sign a contract or make an agreement that negates right’s you have under law. If you make such an agreement, the agreement is not enforceable. Take it to extremes, someone asks you to agree to kill them, does this then make it legal for you to kill this person, even though you may have an agreement signed by this person? Of course not. In the same way, just because you agree when downloading a song not to onsell the song, the seller cannot deny you the right to pass on the licence you own to a further party. Therefore the agreement they ask you to agree to is illegal, and negates your rights as the possessor of the licence. Put it this way, every time you are sold a licence, the sellor has one less licence available to sell ie: they have passed the licence on. Apple Tunes don’t just happen to own the copyright for all this music, and sell it as many times as they like without paying anyone anything. iTunes have to purchase the music too (even if they buy blocks of “rights” from recording companies, it’s the same thing). So I believe that if push came to shove, in court they may not be able to enforce their rights over a particular song they no longer hold the licence to (just like once you buy a cd the store you buy it from cannot dictate who you pass it onto once you have finished with it)

    Like

  14. Dear seller,
    I hereby wish to inform you that i am interested to purchase from you.
    I saw the advert on the internet today, Kindly give me your best offer.
    I will make my payment through certified/cashiers cheque.
    I have a client in Redding CA and will be ready to send you payment by
    post you when we both finally agree on terms.
    If its still available for sale, provide the details below…
    YOUR NAME………..
    MAILING ADDRESS…..
    TEL. NUMBER………
    Kind regards

    Like

  15. Saturday, September 06, 2003 08:51 PM

    Did you see this? George Hotelling bought a song from the Apple Music Store, then tried to sell it on eBay. He was trying to see if he truly “owned” the song, but eBay cancelled the auction (they have a policy against selling anything which can be…

    Like

  16. Fifteen Minutes Anyone?

    George Hotelling is performing an “experiment.” For 99 cents, he purchased a song on Apple’s iTunes music service, and then put the rights to his download for sale on eBay. According to the AfterDawn.com newsletter, bids were as high as…

    Like

  17. Peerflix, right of resale and the one-copy-per-song town.

    The Menlo Park startup Peerflix has been getting some ink the past couple days. They’re like NetFlix, only instead of renting a DVD for an indefinite time you trade DVDs…

    Like

  18. selling digital music

    In an interesting legal test, a Michigan man is selling a track he purchased from the iTunes Music Store on eBay. In a posting to his weblog, George Hotelling writes: Does the Right of First Sale Still Exist? I just…

    Like

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google+ photo

You are commenting using your Google+ account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s