http://www.cdfreaks.com/news/13062

While it is common to see people selling off old CDs, vinyl (records) and tapes such as at car boot sales, at auctions, eBay, etc. unfortunately this cannot be done as easily when it comes to digital music. For example, eBay has already stopped people who tried auctioning off any iTunes purchased music. Now, it is getting quite common to see consumers trying to sell iPods preloaded with music, so to stop this, the RIAA has now banned the (re)sale of iPods with loaded music, regardless of whether or not this was obtained legally from iTunes, CDs or other sources.

According to the RIAA, they claim this is a clear violation of US copyright law as it is no different to selling a recordable CD/DVD filled with one's music collection. As a result, the RIAA is now aiming to go after those selling iPods preloaded with music, particularly eBay sellers and are in the process of making an agreement with eBay such that anyone who tries selling a loaded iPod will get a warning.

So far, the RIAA is unsure how to go about handling the TvMyPod issue, since even though this company resells iPods preloaded with DVD content, the customer also gets all the original DVDs that were preloaded. RIAA President, Cary Sherman reckons that they are technically not allowed to do this without a license, but unfortunately there is no such license that exists to cover this. Thanks to RTV71 for letting us know about the following news:

Although it may seem like a feasible idea, the Recording Industry Association of America (RIAA) says that reselling an iPod or MP3 player with music already preloaded on it is illegal.

"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 to MTV.com. "Either act is a clear violation of U.S. copyright law. The RIAA is monitoring this means of infringement. In short: seller beware." Many people have been selling their used iPods online with thousands of songs preloaded on them.

This decision by the RIAA also clearly shows one major drawback with digital downloads over traditional physical media such as CDs, tapes, vinyl, 8-Track and so on – one cannot resell digital music they purchased. For example, if one has about 100 songs they bought from iTunes that they would like to sell off, they can’t sell their music on an iPod or DVD as we can see from this RIAA’s decision, they cannot burn it as Audio-CDs to sell off either since there is no way to tell if the CD-R is an illegal copy and finally it is not clear if it is possible to resell the PC either with the iTunes tracks still on it, since technically the iTunes account will still remain in the original owner’s name.

-------------------------------------------------
"Remember this is also coming from the same corrupt group of people who said if you have mp3's of all your cd's and your cd's get stolen out of your car, like happens to so many of us, you must delete the mp3's that you have or else re-purchase every single cd that you have an mp3 of, otherwise you are guilty of copyright infringement. These dinosaurs have no idea on how to run a business in today's world, and their measures to keep their strangle hold on us will just more and more drastic, until the sheeple wake the F(*&#(%* up and realize that they are essentially a terrorist organisation that is after nothing but our rights that were given to us by our governments, and our hard earned cash. Screw the consumer, because "without DRM, all customers have the potential to become pirates" is their attitude. And it shows through acts like these that we are NOTHING more to them then dollar signs."

"Remember this is also coming from the same corrupt group of people who said if you have mp3's of all your cd's and your cd's get stolen out of your car, like happens to so many of us, you must delete the mp3's that you have or else re-purchase every single cd that you have an mp3 of, otherwise you are guilty of copyright infringement. "

from a legal aspect, that's correct. It's not a nice way to do business, but.. it's the legalities...

Wrong again.

See definition of "copy" and "phonorecord" in 17 USC 101

I don't even have to refer to Betamax or Grokster decsions to beat this guy. The statute itself does nicely.

Expected behavior from an industry built on the wrong people owning the copyright to another's work... Angus Young said of illegal filesharing "it doesn't stop us from having breakfast in America and lunch in Paris" (or something real simular). I have to wonder what Paul McCartney thinks of his artwork being used to sell shoes (yes, Ive personally boycotted Nike because of this).
To a point some copyright protection is needed, one should not be depriving an artist of his fair royalties, but when the Major Four are allready ripping of the artist worse then any "pirate" can I can't take any bitch from the RIAA seriously.

Now plug it into 17 usc 106...

So do you know of any case where this has been tried leflaw?

Every case requires reading the statute.

(By the way… this doesn’t apply to “iPods”, it applies to “MP3 players”. F*ckin’ industry makin’ iPods out to be something so special and great. You can legally buy and download music to your MP3 player on ALL devices.)

I like to take complex matters, such as law ‘n’ stuff, and bring it down to the simplest level. You know, sorta’ the lowest-common-denominator (oh god, it looks like I do use math in everyday life after all). Look at it this way… if you are selling a 10 disk car CD changer from your car and it’s “loaded up” with CDs of music you’ve bought … no one on Earth would think of that being wrong, and in fact… selling this changer loaded with music should be a pro for buying the device; even make the price higher or more valuable.

The internet and digital forms of media is still new, so although the law is old and unchanged, society is still trying to understand it all. So, as a society, ask yourself; if it’s not wrong to sell a CD changer filled with CDs you’ve bought, is it wrong then to sell an MP3 player loaded with songs you’ve bought? I mean, that should be an increasing value factor of the device.

It’s cool to quote law and cases and stuff all day long… but we all know that situations like this don’t play within the legal boundaries, whether we have the law on our side or not. It’s more of a society issue because if enough people agree something is right or something is wrong, the law will shift and evolve towards the majority. (Like the Betamax case)

So ask yourself this questions and then… give the same simplistic but rock-solid scenario to two other people you know and ask them, without giving any bias. Then, tell’em to do the same thing to two people they know and so-forth. Law don’t matter for sh*t if enough people are against us… and law won’t matter for sh*t if enough people are with us. But one thing’s for certain… the “people” won’t know unless we get off our asses and share the same information we have with them.

Peace & Respect
Mixer Jaëxx @ http://www.supportUG.com

I still disagree with leflaw on this one. Just one guy's opinion. The HD is the copy.

"...if you have mp3's of all your cd's and your cd's get stolen out of your car...."

This doesn't mean the RIAA will start sending subpoenas to insurance companies to get the names of people who have files stolen CD claims. They threw this out there so that the next time they take someone to court over file-sharing, the defendant can't claim, "I bought the CD, but it was stolen from my car." If that happens, the RIAA will pull this card.

Now it's questionable whether or not a judge would agree to the RIAA's definition of what's legal....

I think it is wrong for the RIAA to forbid the resale of legally purchased downloads, such as those from iTunes. The music industry is still miffed that they don't get a piece of the action when CDs are sold used and they don't intend to let downloaded music slip through their fingers, too.

Between ruining their CDs with faulty and draconian DRM and blocking the resale of downloads (not to mention DRM on those as well), they certainly make buying their product UNattractive. Why don't they just start advertising a free "Slap in the Face" from a real music industry executive with every music purchase!

Much as the RIAA would like to destroy the possibility of selling used music, they cant.

Software and games, however... well, dont trust online-games brought on ebay. If your unique serial number is detected by the publisher as no longer unique, your purchase becomes worthless.

mroop

Copy and Copies are two different things. Remember - number of copies is relevent to fair use analysis.

Also, read 17 USC 106 and see if you see the singular word "copy" as opposed to "copies"

The simplist level is:

the words of the statute, not what you think is says, or would like it to say, but what it actually says.

You could be right. Honestly I'm too lazy to read statutes now, so I concede. Ouch - that hurt. : )

leflaw:
Are you referring to "As section 109 makes clear, however, the copyright owner's rights under section 106(3) cease with respect to a particular copy or phonorecord once he has parted with ownership of it."?

ST

Here is the principle in specific application -

The proposed amicus brief would deal solely with the issue of "whether the "distribution right" granted to copyright owners by 17 U.S.C. § 106(3) encompasses transmissions over computer networks." In its letter, EFF said:


Plaintiffs in their opposition brief argue that their § 106(3) rights encompass such transmissions. However, the plain language of the Copyright Act - as well as legislative history, historical practice, and binding Second Circuit precedent -requires that a physical, tangible, material object change hands before the distribution right can be infringed. Accordingly, the § 106(3) right simply has no application in P2P file-sharing cases, as no physical object changes hands when individuals upload or download music over the Internet.

Thats the EFF's letter seeking permission to file an amicus brief in Patti Santangelo Case.

Here's hoping that friend-of-the-court brief can be granted!

"Plaintiffs in their opposition brief argue that their § 106(3) rights encompass such transmissions."

Oh c'mon now. They must know that is never going to fly. Talk about tilting at windmills.

The Riaa will keep killing off their Master's Biz!!!!! People who have gotten their Ipod loaded with Riaa music legally are going to be pissed!!!! This will be the last straw for them!!!

Arn't you legally entitled to resell ANYTHING you legally own? How can the RIAA get away with making an exception for their own shiatty music downloads?

oops, looks like a post of mine got deleted. Sorry about that, I tend to rattle on at times and to co-relates stuff that only an artist (or a stoner) could put back together

Regarding the selling of loaded iPods, it would seem the copyright holder only has the right of first sale, right? Are digital files considered differently than CDs in this regard??

"licensing" or "no sale" has replaced "first sale", for all practical purposes.

RIAA is only making loaded IPods more attractive!

In that case, I'm mystified how the process works when certain stores sell used CDs, just to consider one instance of how weird things seem to me. How does the RIAA view that as not being a strange sort of, ahem, exception (inconsistency on their part)?
If someone thinks long enough, I'm guessing there are going to be some interesting things that could be brought up in court to punch at a few straw men that they've set up lately.
A common man might get the notion that the opposition deserve to get their ass handed to them for the kind of crap that they've been pushing. Hell, might as well declare it wrong to listen to radio without making radio users pay a licensing fee!

It would appear that's what happens when lust for power is craved by a cartel that insists on controlling a certain segment of the economy (entertainment content), aided and abetted by Congress-critters who comply with their rather high-handed demands from time to time (unreasonable copyright extensions, DMCA, etc.), some of which also have an effect of unfairly undermining what should be a level playing field for independent musicians.

[end of rant]

[I'm still seething!]

The power-hungry, greedy, grasping RIAA would like to charge for ALL listening to music if they could. Plus, ban all selling of used CD's without some additional licensing fee involved.

To me, this is a tip of the iceberg revealing the type of deplorable circumstances that can result from
unbalanced activity of those who have been allowed for too long to manipulate a certain segment of what is supposed to be a free-enterprise economy, and to supplant part of what is supposed to be the public's common good intended by our founding fathers!

[end of rant, part 2]

Oh, yeah, one more thing.
Re: "...since there is no way to tell if the CD-R is an illegal copy . . ."

If the RIAA gets a chance, they'll plug that gap by deploying some sort of "watermarking" process that can test the music on any digitally recorded medium. You just wait.

Actually, they tried - the SDMI technology. It didn't work, though remenants of it can still be found in WM-DRM.

"Hell, might as well declare it wrong to listen to radio without making radio users pay a licensing fee!"

Sirius ??

"Actually, they tried - the SDMI technology. It didn't work, though remnants of it can still be found in WM-DRM."

You're right.
However, the next time they try, they just might be successful.

"In that case, I'm mystified how the process works when certain stores sell used CDs, just to consider one instance of how weird things seem to me. How does the RIAA view that as not being a strange sort of, ahem, exception (inconsistency on their part)?"

Used cd sales are covered under the "first sale doctrine". Google to learn more. Garth Brooks wanted to challenge it 10-15 years ago. I'm not sure if he ever actually mounted a legal challenge, but he was bitching about it.

"Sirius ??"

Sirius and XM are subscription fees, not licensing fees and well worth the cost considering the state of radio today.

I have some questions regarding the differences between what the law dictates, license agreements, and content warnings. How much of what is stated on the back of a CD or DVD enforceable by law?

Some DVDs have warnings which state:

"This DVD is authorized for sale or rent only in the country where originally sold (i.e. only in the US, or only in Canada, respectively). Unauthorized reproduction, distribution, or exhibition violates federal laws with sever penalties…"

I suppose this means if an individual purchased this DVD in Canada, he/she cannot resell it on eBay to someone in the US. Perhaps this is an agreement between the manufacturer, wholesaler and local distributors; however, once it is purchased, you should be able to distribute it to whomever, such as selling it online or at a garage sale. In theory, it could also mean that the distributor in Canada only wants Canadians to purchase it (including from online shops like Amazon.ca) and that the US distributor only wants US customers to purchase it. I am going to Canada this summer and if I buy a DVD with this warning, does this mean that Customs is required to confiscate the product (even though it was legally purchased)?

Here is a statement that EMI has issued on some of their CDs (mostly in the 90s, but they still may do so today):

"If this Compact Disc is cut or drilled or marked for promotional use only, (i) it is not intended for sale and (ii) neither the artist, songwriters, or publisher receive any compensation."

I have been to music stores that have cut-out sections, including national chains. There was no indication that these were promotional discs. However, I have seen at least one CD at FYE that is clearly marked "promotional - not for sale" and it is being sold at some odd price, like $1.01. It is single entitled "Azul" by Cristian Castro. Perhaps they received special permission to sale it. I don't think they have sold very many because whenever I am there, they seem to have the same number available (which is about 30 copies). What is even more interesting is that the disc is from 2001.

Here is an interesting link regarding these types discs and their associated warnings:

Cut-Outs And Promos

How much of these warnings can actually be backed by the law? Aren’t some of these just wishful thinking on the label’s part? Does any part of Copyright Law have language forbidding international distribution on titles where it is so marked? What about SonyBMG’s EULA on their XCP titles? How many of those can be enforced by law and which are those that the label is merely strongly suggesting?

We would have to concur with mroop (about what he wrote).

Sorry, shadeswv, our posts crossed in cyberspace, so to speak, within a minute of each other's.
It almost appeared as if I ignored you there.

(Your questions and concerns are valid and worthy to be considered.)

"How much of these warnings can actually be backed by the law? Aren’t some of these just wishful thinking on the label’s part?"

Regarding promos, I think I read somehwere that there was actually a court ruling in Cali that said you can sell your promos. But regardless of that, generally speaking if someone gives you something, they can't tell you what you can do with it - it's a gift.

"Does any part of Copyright Law have language forbidding international distribution on titles where it is so marked?"

I don't think U.S. copyright law does not speak to this issue, but I could be wrong. But there are trade agreements and such that prevent you from selling titles from other countries where applicable. Google "parallel importing" for more info.
I do know that retailers in the U.S. are not supposed to import cd's from Canada into the U.S. and sell them. But they do and I've seen them in stores. The retailer can get in big trouble with the record company if they get caught doing it.

leflaw wrote: "'licensing' or 'no sale' has replaced 'first sale', for all practical purposes."

I would agree the industry would like this very much for any sound recording no matter what the format or delivery mechanism is, however, they can't just change laws in midstream. They have to abide by them as much as we do. Music CDs don't have EULAs like Computer Software. Perhaps the industry believes this is acceptable as they're trying to make "digital" mean "downloads" and that's something NEW, which old laws didn't cover. The problem with that argument is, CDs have been digital since there inception.

"Perhaps they received special permission to sale it."

No, they just sell them. Most places will sell promo copies. Nobody cares about that. If you're in LA then it is often the record company employees selling their promos to the store!

leflaw wrote: "'licensing' or 'no sale' has replaced 'first sale', for all practical purposes."

Where exactly are the terms of this license that I acquired by purchasing a CD?

Under what terms is this license transferrable?

Does the license expire when the work enters the public domain?

All I hear from the RIAA is doublespeak.
Or maybe it's the death throes of a dinosaur.

gfmlcka, good questions (and cute comment at the end of your post).

There's a difference between what's right and what's legal. If someone passed a law saying you could kill innocent people and have no repercussions, it still wouldn't make killing an innocent person right. Just because the RIAA has lobbyists who buy legislators to make things like th DMCA into "law" doesn't make the law right. Upright citizens are not morally obligated to obey unjust laws. So it doesn't matter what the RIAA says is legal. It strikes me as interesting that they're no longer saying that this or that practice is unfair - they're saying what is legal and illegal as if they think/know they're the ones making the laws. "We didn't buy off so many legislators just to have pathetic little consumers defy what we've made into law!" How dare we copy our own music or sell it to someone else when we don't want to listen to it anymore. Bad us.

I don't purchase cds anymore from the industry because of DRM (and it does more wonders for my budget than quitting smoking does for smokers), but back in the day when I did buy a cd, I bought the music itself, not just the silly piece of plastic and silicon. If the industry thinks otherwise, or printed whatever it wanted on the packaging, that's their business. It doesn't affect my decision to do what I want with it. If I want to burn a mix cd from my music collection or transfer music to my mp3 player, I'll do it. Because it's DRM-free and I own the music.

Of course the law allows the industry to pursue what they would call "justice" in suing it's own customers, but they'll reap what they sow. I wonder what the historical perspective on this whole lawsuit thing will be. Are we going to look back at the piracy scare like we currently look back at the red scares of the 20's and 50's and laugh at the joke that they were?

It is TRUE that an unjust law is WRONG.

However, if We-The-People continue to allow these evil & unfair laws to keep appearing on the books, what the hell are we actually doing to keep the spector of dictatorship from occuring?

WRONG and UNJUST laws on the books are AMMO for the EVIL ones!

We-The-People must USE our constitutionally granted powers of free-speech & assembly (and our VOTES) to FIGHT AGAINST these corporate/special interest "dictators-in-waiting" who keep WINNING against us with their tons of $$$.

...BEFORE it is too late!

Shut off their oxygen ($$). That's what we do.