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)
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:
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.
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 responses to “Does the Right of First Sale Still Exist?”

  1. eBay item 2555673237 (Ends Sep-09-03 21:16:24 PDT) – Double Dutch Bus by Devin Vasquez

    Apple’s iTunes is put to the test .

  2. I see Idiot says:

    “Its funny how everyone is bashing or flaming this guy… I laugh, why do you even care whether or not its illegal or whether or not hes begging for attention? As a teenager, I think this is a funny situation and a good idea. Legalistic middle aged balding women are the only ones concerned with whether or not this is legal according to their interpretation of Itunes agreements and such. Shut up. Who seriously cares?
    And the only ones who worry about those who want attnation or those who’ve lost attention.
    Posted by: Cadengo at September 3, 2003 09:29 PM ”
    Well, America at it best, ignorant and irresponsible, with no morals or scruples.
    Hey idiot, get a clue, its real world, with real consequences for your action. Your mommy and daddy won’t help you if you break the law. And as a teenager, you should shut the hell up, you farking retard. You simlple ass moron.
    Are you actually proud of your ignorance? Well no point asking that since he’s too stupid to realize it.
    What a shame, this lump of crap is alive while kids are dying in third world country!

  3. I.P. Freely says:

    After carefully thinking this over, I think you can sell your iTunes downloaded song. But you are buying the AAC code. There is nothing in the Apple’s License that states that Apple is responsible for the music to play on any other machines then your’s and 3 other Macs.
    If you sell it, you, George, is responsible for it. So I don’t think Apple is under any obligation here, if it doesnt work on anyones machine, its George’s responsibility.
    And if you burn a copy on a CD, thats for personal use only. So you’ll be breaking the law there.
    That my take on it.

  4. Joetek.com says:

    iTunes raises legal questions

  5. Rob says:

    As far as trasferring the song while following eBay rules regarding selling downloads:
    1. Send the person a written bill of sale and a one-page “Agreement to transfer all rights and ownership to this particular iTunes song” via snail mail.
    2. Once you receive the countersigned agreement back allow the person to download the actual file off your machine.
    The money transfered over eBay then becomes consideration for a contract to transfer your rights to the song, and hence you’re not actually selling just downloaded data.
    Of course, IANAL and this isn’t legal advice.

  6. Edmund says:

    Perhaps you can transfer the file over a direct modem dial-up from the purchaser’s machine to your machine. That wouldn’t seem to go against eBay’s rule against transfer over the Internet.

  7. Dollars, Cents and Downloads

    Can you resell a downloaded file purchased from iTunes? George Hotelling hopes to find out if the right of first sale still exists, by auctioning a single song, “Double Dutch Bus,” on eBay. The auction violates eBay’s terms of use….

  8. A sticky situation

    Since eBay prohibits the sale of downloadable media, I wonder how a person can complete an auction of a music track from iTMS? Apparently, George Hotelling, the seller, is counting on the fact that since he's the owner of the…

  9. ajs says:

    Way to go …..
    BTW, you may very well already have your own independent music sharing service. It’s called /usr/sbin/httpd

  10. dpbsmith says:

    Watch our for eBay’s “fee avoidance” policy!
    You say “I’m fine with the winner donating directly to the EFF, 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.”
    I think you should retract this. eBay cares deeply about its auction fees, which are based on a percentage of the high bid, and intensely dislikes any sort of arrangement whereby an item is sold on eBay for a falsely low price with a side understanding that the buyer will pay the seller an additional sum. They call this “fee avoidance” and is a good way to get NARU-ed (kicked off eBay) if it is brought to their attention.
    I realize the sum isn’t being paid to you, but being donated to the EFF, but the situation is getting complicated enough without bringing eBay into the picture unnecessarily. When eBay does act, it tends to be peremptory and not very discriminating. For example, simply mentioning the phrase “CD-R” in a music auction is likely to get the auction terminated–even if the wording is something like “this is an original CD, not a CD-R copy.” (And, yes, you’re wise not to try to supply your song on recordable media even though their policy appears to permit this under special cases…)
    You may not care that much about being kicked off eBay, but the result might be your auction not being completed, which would ruin, or at least complicate, your interesting legal experiment.

  11. Blank[]Page says:

    iWant iTunes Music Store

    90% Crud: Does the Right of First Sale Still Exist? It’s interesting what debates a simple little experiment like this can stir up. I mentioned this during lunch and conversation raised some interesting points. Such as, what is it you

  12. Mercurial says:

    Sell your songs

    George is auctioning a song he bought on iTunes. That is an experiment in transferability, and of course, having achieved…

  13. LawyerTom says:

    Apple would be smart to ignore this whole mess. If they just let it go then they will save themselves a lot of headaches. They don’t need to set up any precedents or get tied up in legal battles that could cost millions and change their whole operating strategy. If they ingore this, the problem will go away. This problem will be addressed somewhere, but it can wait. It is several years off before there is any appreciable amount of copywritten work that is not in hardcopy form. Until it is more prevelent, the issue of transferring rights is small potatoes because minimal revenue will be lost from such transactions. What does Apple have to gain in the next 36 months if they were to acknowlege this is an issue? Nothing! They will not sell less songs because people have this ability.

  14. Testing the right of first sale.

    Man buys song from iTunes music store for 99¢. Man tests bounds of legal ownership in the digital age by turning around and selling said song on ebay. Man declares that all proceeds from the auction will go to the EFF The masses aparently approve of t…

  15. Pavleck.Com says:

    Testing the right to resell online music.

    From this SlashDot story I was referred to a link about a gentleman attempting to resell an iTunes purchased song on Ebay. The link to the auction is here, auction number 2555673237. As of right now (12:45pm CST, September 4th)…

  16. Jeremy says:

    Don’t let the negative talk about what your doing get you down man – I think it’s a great test to see what happens when you try to resell something you legally own, even though it’s in a digital format. All I hope for is if a lawsuit does occur, the highest bidder was an attorney and he does some pro bono work for you! Good luck and keep us updated!

  17. Runons says:

    Zing! Ernie, JD Nails iTunes Music Resale Efforts

    George Hotelling, blogger and web designer, recently decided to test the limits of the Apple iTunes Store license by selling a single downloaded track on eBay. Proceeds from the auction, which eBay removed, were to be donated to the Electronic…

  18. user_79 says:

    …Because of limitations to iTunes Music Store, this song cannot be shipped outside of…
    you agree with itunes-limitations, so, where is the problem?
    gratulations for using a mac!

  19. Testing the legality of Apple’s iTunes Music Store using eBay? Bad idea.

    C/Net has this story about a fellow who is using eBay to begin a bizarre challenge to Apple’s iTunes Music Store. Here’s the story:

  20. Dr Davis says:

    It is not a good test because it violates both Apple and Ebay terms.
    It is clearly illegal, and proves nothing.
    It may convince music service companies improve the wording of their terms so even this idiot can understand.

  21. tuc says:

    Two things:
    1) There is another ebay auction for an iTunes song. It’s a shorter auction, so it will end before the Double Dutch Bus auction does.
    2) One way to complete the transaction is for you to put the song directly on to the buyers iPod.

  22. Kris says:

    Wow… I looked at the auction, clicked the link to see the bids listes, and all of a sudden it was invalid. I clicked back, and once again invalid. Damn eBay… oh well.

  23. tuc says:

    uh oh: “The item you requested ( 2555673237 ) is invalid, still pending, or no longer in our database.”

  24. Shawn says:

    It doesn’t have to be sent electronically via the internet. Move the file to a keychain microdrive and mail it to the winner. You don’t have it any more because you moved the original to a different drive. No copying issues!

  25. Shawn says:

    what about these auctions? They definatly violate Ebay’s policy….

  26. Dr Davis says:

    Told you it was illegal

  27. Dr Davis says:

    So report them, that is how ebay works.
    The 15 minutes is over, you lose.

  28. Syco says:

    Damn! This was interesting!
    Here’s hoping you can get the auction back up. 3B4Y SuX0Rz!!1!!!!ONE

  29. Dr. Davis` says:

    It is not interesting it is stupid.
    It would be interesting if it was legal and had a chance of working

  30. Aaron says:

    You might be able to make the case that your auction didn’t violate the downloadable music policy.
    * A copy of a software program which the successful high bidder can download from your Web site
    * Music or video files that you will deliver through a peer to peer file-sharing community or network
    * A copy of a downloadable eBook
    * A secret URL address where the high bidder can download “freeware” or “shareware” software programs
    And it looks to me like you’re offering none of those things. While it is a file, it is a legitimate, legally owned file that you are willing to deliver via methods other than just putting up on a website.
    Maybe if you said you’d ship a CD with the file burned onto it, eBay might accept that…

  31. Dr Davis says:

    Then apple will cancel it because it violates the iTunes terms.
    This is clearly illegal in every way.

  32. the humdrum says:

    Going, going, gone

    eBay cancelled his auction, but George states on his blog that he has submitted an appeal, so the auction might actually revive. I got a lot of incidental hits to my blog as a result of pinging his thingy, which…

  33. tuc says:

    Just because ebay removed it does not make it illegal.
    It may in fact be illegal, but ebay has a history of removing auctions for flimsy reasons.

  34. Chris says:

    Dr. Davis, you sir are an ass. (see post @ 3:44 pm)
    George is trying to prove a valid point in that the sale and transfer of ownership of a legally obtained elecronic version of music should be treated no differently than a store bought compact disc or other such legally obtained physical media.
    The law is all about interpretation. Don’t kid yourself. Geroge is trying to prove that the law can be interpreted to allow such transfer of rights from one individual to another for non-physical media.
    George, you keep forging ahead. My personal opinion is that the RIAA is totally Screwed with their interpretation of the supposed correlation of CD sales decline and “rampant piracy due to downloading”.
    Universal music has clearly pointed out with their announcement of lower MSRP for physical media, that they have been charging an artificially inflated price on CD’s and Cassettes for years.
    The RIAA must come to the realisation that they cannot continue in the old ways of music marketing. Consumers will buy if they feel that they are getting a fair price. Before the introduction of recordable media costing less than $0.25, the common belief was that is was fairly expensive to produce a CD for mass market. If a consumer can buy a CD-R for

  35. td says:

    Aaron – to sell a CDR on ebay you must be the owner of the copyright for the material on the CD.
    This experiment would be more interesting if all the ebay terms were followed. Then the ball would be in Apple/RIAA’s court. IIRC the RIAA is a vero member and can cancel the auction on their own.
    Rob’s advice is good and I believe follows the terms for an ebay sale – something tangible must be transferred between the seller and buyer.
    Also, the email you get from ebay regarding the cancellation should have a link or email address that you can request for information regarding the cancellation. If you re-list make sure you follow their terms. Failure to correct listing violations can get you NARU.

  36. Fabian Lamaestra says:

    Invalid Item
    The item you requested ( 2555673237 ) is invalid, still pending, or no longer in our database. Please check the number and try again. If this message persists, the item has either not started and is not yet available for viewing, or has expired and is no longer available.

  37. http://www.becomethemedia.com

    The right of first sale allows us to resell a legally purchased CD without permission from the copyright owner. But does the same hold true for music files legitimately downloaded from an online store such as Apple’s iTunes Music Store?

  38. it was my damned $.99, now its my damned property. dang it.

    ringy-ding-ding. . . Selling your itunes music on ebay? Interesting. (and good for you mr. man)…

  39. Marshall says:

    Here’s another HTML version: http://www.exclupen.com/misc/itunesauction/
    It’s a couple of hours more recent than becomethemedia’s, with a slightly higher bid price.

  40. Tyrall says:

    And now eBay, as expected, have pulled the plug.

  41. Tyrall says:

    Apologies for the redundant statement, it appears I was looking at a cached page. Kudos to those who provided a snapshot.

  42. Tom Morris says:

    Put it up for auction on your own site. That’ll foil the old eBay problems!

  43. Does the right of first sale still exist?

    Here’s someone who bought an (encrypted) iTunes song from Apple and is selling it on eBay. He wonders: Does the right of first sale still exist?

  44. Vince says:

    You are selling your right to own the song. Not the song itself. eBay has made a mistake by cancelling your auction and you should be able to recover it or make a new one as you see fit. I think other people should do the same thing as you do just to let them know that we’re not willing to be manipulated like that. People are already selling software on eBay, I don’t see any difference between software and songs. They both are legit products, be it a single computer file or a complete box with tons of CDs. It still is the same thing. You are not selling a file, you are selling the right to own it.
    eBay cancelled your auction by interpretation error – end of story.

  45. James Bradders says:

    Lovin your work George, I can see the stock market headlines of the future now;
    Frozen orange juice stocks are down
    Digital medium stocks are up; with a significant rise in Jpegs, Tiffs and Mp3s
    RIAA stocks at an all time low
    And in other news, Tower records and HMV close the last of their stores due to years of over priced products

  46. TSGarp says:

    I salute you, you’re question and test of electronic rights are (is?) intriguing at the least. I hope ebay reinstates you’re bid, and that you recieve much press about this and your cause.

  47. Dr Davis says:

    Ebay does not allow downloadable media.
    Apple does not allow transfer of itunes songs.
    Ebay ended the auction as I predicted.
    Chris has his head in the clouds and thinks that his personal feelings have anything to do with the law.
    He was trying to sell the file, which he does not have the right to do.

  48. Nick says:

    eBay never, ever, “reinstates” auctions. The best you can hope for is that they tell you to go ahead and resubmit it to run again.
    I don’t recall the exact text of your original auction, so I don’t know what you said regarding downloading, but my interpretation was that you were going to have the winner download it. Maybe eBay read it the same way.
    You need to make it perfectly clear in the auction exactly how you are going to get it to the buyer. You can’t burn it to a CD-R or CD-RW since that violates another eBay policy. Perhaps you could write it to a hard drive and mail the hard drive, or do the same with a memory card. Even though, eBay could slant the rules of their “no recordable media” against you.
    You are facing two problems you need to overcome in order to carry out this experiment. The first problem is all the fake bidders. The second is slipping around eBay’s net. Here is how you solve these problems.
    Run your sale as a fixed price auction with a “buy it now” price of $50 or so. Once your auction is posted, go here to switch your auction to accept pre-approved bidders only. Now wait for someone to contact you who is willing to hold up the other end of this experiment. Once you have a bidder, approve them and let them make the purchase using “buy it now”. With any luck, you will have completed a binding sale to a good buyer within an hour of posting your auction.

  49. Nick says:

    P.S. I read your original next, and sure enough you specifically offered to provide the file via a “password protected web site” which does indeed violate the eBay policy against downloadable media. Your disclaimer said that you wouldn’t break any rules, but you failed to explain how you would actually ship the file.
    I’d like to see you use the method I suggested above, but it dawns on me that the heart of your experiment is what happens after the sale, not the sale itself. You’ve gotten enough attention with this that you could offer it in some venue outside of eBay to find a buyer.

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