James Delahunty
13 Feb 2006 20:01
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
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