Can You Sell Your iPod With Songs On It?

from the questions,-questions... dept

NY Times reporter John Schwartz has an interesting article about how he learned so much more about a co-worker after buying the guy’s iPod. There were still about 3,000 songs on the iPod, and Schwartz spent some time listening to many of them — even discovering some bands or songs that he liked quite a bit (to the point of wanting to go out and buy the CDs himself). While it’s interesting to see how listening in on someone else’s iPod is a way to learn more about them, a much bigger question may be about the legality of selling an iPod with music on it. Sure, the seller can claim they’re just selling the device, but considering that the recording industry freaks out if anyone shares a song for free, let alone profits from selling a song, it certainly seems like Schwartz’ colleague, Kenneth Chang, has just opened himself up to a tremendous lawsuit. If the recording industry is going after people for sharing music for free, why not selling iPods full of music for just the cost of the iPod?


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Comments on “Can You Sell Your iPod With Songs On It?”

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17 Comments
Anonymous Coward says:

Re: No Subject Given

The article does not make it clear whether the music content was part of the price.
If not then there is no problem, if the content was part of the sale then there may be but in reality there is little point in going after someone for a one off private sale.

If someone were to start selling ipods on ebay with their CD collection loaded for hundreds of dollars extra, I would expect the adds to be pulled

shaitan says:

Seller not responsible

Since the seller could rightfully claim that he did not explicitly sell the contents nor was it in any way a condition of the sale, and knowing that iTunes does not provide backup of iPod contents and will wipe any musical content not in your iTunes database, he could be held responsible for the buyer’s action. If the buyer, being more technically astute then anticipated (a claim that the seller could make) choose to preserve the content, well beyond the seller’s expectations by using third party software, then it is the buyer who has violated copyright terms.

Al says:

Used computers have always been sold this way.

If sold privately, used computers have always been sold with productivity software and games on them. If Microsoft hasn’t nailed anybody for doing this by now then it must be legal. If Microsoft can’t make money by prosecuting this practice then there is no money to be made. Don’t worry about it.

Precision Blogger (user link) says:

WHat counts is what's in the contract:

I hope some iPod owner will comment whether the terms of service have any restrictions in selling the iPOD. I did not find those terms online (so far).

The iTunes terms of service are relevant, see:
http://www.apple.com/support/itunes/legal/policies.html .
” You shall be authorized to use the Product only for personal, non-commercial use.”

That means (I think ) that if you sell your iPod, you cannot charge aextra for iTunes songs on your iPod. Otherwise the terms are pretty permissive.

Apple may quickly changes their terms to handle iPod sales. I remember a case many years ago when two NFL football tema owners swapped teams. (The owners each moved to the other’s city. The players did not move.)

Both owners got spectacular tax advantages fromt his swap, as they were able to start depreciating the teams (including the players) all over again. The IRS was asked whether this was legal. Their answer was: “Don’t do it again.”

Why is that case relevant? Imagine a world where iPod owners routinely swap their iPods with other people, to get access to lots of new music. If I were doing these swaps, when would I need to download a new song?
– PB
http://precision-blogging.blogspot.com

Anonymous Coward says:

Right of first sale?

The copyright law has for many years included a “Right of First Sale Doctrine”. The idea here is that the copyright holder’s control is limited when a work is resold. For example, a publisher is paid when a book is sold new in a bookstore, but the purchaser is free to resell it or give it away without compensating the purchaser.

Part of the reason that computer software is licensed and not sold is to prevent the software from falling under this doctrine.

My personal view (obviously IANAL) is that, as long as the seller of the iPod did not retain any copies of any of the files, there should be no infringement issues, provided of course that that recordings were legally acquired in the first place.

I think this idea is widely accepted. I know one lawyer who bought a used iPod and came to much the same conclusion.

Here’s a link I found to a law review article discussing the right of first sale as applied to digital audio recordings:

http://www.law.duke.edu/journals/dltr/articles/2001dltr0018.html

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