Should the resale of MP3s be legal?

[RandBlade]

http://www.bbc.co.uk/news/technology-19842851

I find this to be an ingenious idea and the arguments made by EMI to be spurious and hypocritical. If the music industry's digital goods are protected by copyright laws (they are) then all rights that go with those laws should follow too, including the first sale doctrine.

EMI claim that just because its removed from the computer there's no way to guarantee all copies have been removed - true I suppose a copy could be put on an iPod before resale. But so too could that happen before a CD is resold. In fact the CD before resale could be left as MP3s on the computer to be copied to many iPods. Does that mean all second-hand record stores should be shut down?

[Ominous Gamer]

I find the entire idea "its a license, not a product" retarded.

[earthJoker]

I think we had a discussion on similar decision already in the "What makes you happy" thread. There it was downloaded games. The issue is the same though.

http://www.rockpapershotgun.com/2012...nloaded-games/

[wiggin]

First sale doctrine is pretty unassailable IMO.

[Ominous Gamer]

First sale doctrine is pretty unassailable IMO.

I guess we will see soon when the Supreme Court rules on the issue. So far the lower courts seem to be siding with the copyright holders over the first sale doctrine, the Costco and John Wiley & Sons cases are 2 examples.

[ar81]

I just imagine how the world would be if you needed a license to make a wheel.
We would have horses, not cars.
And to make a building you would be using the old egyptian pyramid techniques of dragging blocks...

[RandBlade]

I just imagine how the world would be if you needed a license to make a wheel.
We would have horses, not cars.
And to make a building you would be using the old egyptian pyramid techniques of dragging blocks...

No, car manufacturers would licence the wheel

[Tylor]

I just imagine how the world would be if you needed a license to make a wheel.
We would have horses, not cars.
And to make a building you would be using the old egyptian pyramid techniques of dragging blocks...

But there is a difference between a real tangible, physical object than a downloaded digital file.

You can copy and paste a file. You can't copy and paste a car. There's no way of knowing that the person who is reselling the music is actually reselling it.

I don't think there is a way to resell MP3s without putting some sort of protection on them allowing to it to only be used on x amount of devices like Apple used to do with iTunes or whatever and even then that would be far to difficult to implement. Either way, I feel like this would just encourage pirating. You could resell pirated music couldn't you?

[RandBlade]

But there is a difference between a real tangible, physical object than a downloaded digital file.

You can copy and paste a file. You can't copy and paste a car. There's no way of knowing that the person who is reselling the music is actually reselling it.

I don't think there is a way to resell MP3s without putting some sort of protection on them allowing to it to only be used on x amount of devices like Apple used to do with iTunes or whatever and even then that would be far to difficult to implement. Either way, I feel like this would just encourage pirating. You could resell pirated music couldn't you?

Two things.

1: This only applies to copy-protected (iTunes) music I believe.
2: Record stores selling second hand CDs exist and it already IS possibly to copy and paste a CD. So what's the difference?

I don't see any logical explanation as to why a CD can be resold but mp3s can't.

[Steely Glint]

If the startup involved hadn't already cracked that technical hurdle I doubt they'd be doing it. It does strike me as rather... pointless, though. There are only two reasons to buy something second hand:

1) Because the product is used and therefore in worse condition, it will be cheaper. Does not apply to digital copies.
2) Because the supply of physical things is limited, you may not be able to obtain whatever it is any other way because they don't make them any more. Also does not apply to digital copies.

Selling pirated digital copies is even more pointless. Why the shit would you pay for a pirated copy of something? If you're gonna get a pirate copy, might as well get a free one.

[Flixy]

I would, however, like to give, say, a movie or album or game I have to a friend if I'm bored with it. Could apply to selling second hand stuff too: if I'm bored with a CD a book, I can sell it second hand. I should sell it at a lower price to compete with the original source, which is a reason for the price to be lower even if it isn't in a worse condition. In fact, I've sold 'second hand' books still wrapped in plastic (I somehow got them in my possession and didn't like the looks of them), sold them for less money than it costs o buy new even if it is in exactly the same condition.

[Tylor]

Two things.

1: This only applies to copy-protected (iTunes) music I believe.
2: Record stores selling second hand CDs exist and it already IS possibly to copy and paste a CD. So what's the difference?

I don't see any logical explanation as to why a CD can be resold but mp3s can't.

With a CD you have a physical, tangible object. The files on the CD are digital, but you have a physical object with those files. Even though it is possible to simply copy-paste the files off the CD and resell it, there is still a physical object involved. Some people want the physical CD rather than just a digital file. But if you are going to pirate the music anyway, it is much easier to just do it through the internet.


As far as selling pirated digital copies, how would you make sure that the file you are buying wasn't pirated music? Will each file need a license of some sort to prove that it is genuine? This will open up the whole debate of whether or not we need to limit the amount of devices we can copy certain files to because without needing a license to make more copies of a file it will be possible to sell pirated files.

[Ominous Gamer]

1: This only applies to copy-protected (iTunes) music I believe.

Apple dropped DRM from its music offerings several years ago. The program in question claims to be far more sophisticated in the manner of locking the down the computer against illegal music and making sure you don't keep duplicates (on that machine).

Selling pirated digital copies is even more pointless. Why the shit would you pay for a pirated copy of something? If you're gonna get a pirate copy, might as well get a free one.

Goes to show that its not about the idea of it being free, but more the idea of being easiest to use. There are/were several russian based sites that exploit that concept. Besides, how many people have been sued for downloading anything from a pay Russian site, even when its 95% off.

[earthJoker]

With a CD you have a physical, tangible object. The files on the CD are digital, but you have a physical object with those files. Even though it is possible to simply copy-paste the files off the CD and resell it, there is still a physical object involved. Some people want the physical CD rather than just a digital file. But if you are going to pirate the music anyway, it is much easier to just do it through the internet.

The physical object costs much less than you pay for the CD. The CD is just a medium NOT the product. Copying a CD is such a simle task that I wouldn't call that a hurde. Actually you could find a mp3 of any CD on the planet already before there was a legal way to buy it as mp3.

[Tylor]

The physical object costs much less than you pay for the CD. The CD is just a medium NOT the product. Copying a CD is such a simle task that I wouldn't call that a hurde. Actually you could find a mp3 of any CD on the planet already before there was a legal way to buy it as mp3.

Right, but some people prefer to pay for the CD rather than just a digital copy. The physical CD might not actually be worth much at all, but it may be a preferred medium of owning the music for certain buyers.

As far as copying the CD, it is much easier to pirate the files on the internet instantly than to drive down to the store/garage sale/ship from Amazon.com to obtain a CD, then copy the files.

[Dreadnaught]

First sale doctrine is pretty unassailable IMO.

The Supreme Court is looking at it right now.

[wiggin]

The Supreme Court is looking at it right now.

That's why I said IMO. I personally find the first sale doctrine very persuasive, though that obviously doesn't protect people who illegally make a copy for sale without compensating the owners of the IP. Obviously there's a complex legal history to the first sale doctrine, and its future is being decided in courts all around us today given the realities of digital media. But I think that it's still very much a valid line of reasoning, hence my post.

[Loki]

I don't see any reason why I shouldn't be able to sell a product with the stipulation that it not be resold. As long as I'm up front about this, why should anyone infringe my property rights?

[wiggin]

Because it ain't your property once you've sold it? Why should you have the right to infringe on the new owner's property rights?

[Loki]

Because it ain't your property once you've sold it? Why should you have the right to infringe on the new owner's property rights?

Ever heard of contracts? If a contract says that it remains my property, then it remains my property. No one forces people to buy goods under those terms. I fail to see why you think it's the government's role to so severely restrict what can and what cannot go into contracts. Why not forbid people from selling goods at too high a price while you're at it? The only reasonable exception I could think of is if the contract requires one or both parties to break a law (e.g. a contract to kill someone or to gamble).

[RandBlade]

I don't see any reason why I shouldn't be able to sell a product with the stipulation that it not be resold. As long as I'm up front about this, why should anyone infringe my property rights?

Because that's not selling. Once you've sold it, you no longer own it - tough.

You can't set a contract that blocks one parties legal rights either. In the UK under distant selling rules if you sell something in the UK from a distance (eg phone/catalogue/internet) as opposed to up-front in a shop then once it arrives the new owner has a 7 day "cooling down" window from the day it arrives to return it unused and unopened for a full refund (minus shipping costs). This is a legal right we have to prevent mis-selling/confusion etc from a badly described item or something else that arrives not as intended. You can't set up a site and make me waive that right in a contract as its a right - you can't block legal rights in a contract.

[Loki]

Because that's not selling. Once you've sold it, you no longer own it - tough.

You can't set a contract that blocks one parties legal rights either. In the UK under distant selling rules if you sell something in the UK from a distance (eg phone/catalogue/internet) as opposed to up-front in a shop then once it arrives the new owner has a 7 day "cooling down" window from the day it arrives to return it unused and unopened for a full refund (minus shipping costs). This is a legal right we have to prevent mis-selling/confusion etc from a badly described item or something else that arrives not as intended. You can't set up a site and make me waive that right in a contract as its a right - you can't block legal rights in a contract.

Only if you restrict what counts as selling. Is anything more creative than "I sell, you buy" too complicated for a common man to comprehend? I see no reason why the government should be in the business of ensuring good deals.

[Steely Glint]

Ever heard of contracts? If a contract says that it remains my property, then it remains my property. No one forces people to buy goods under those terms. I fail to see why you think it's the government's role to so severely restrict what can and what cannot go into contracts. Why not forbid people from selling goods at too high a price while you're at it? The only reasonable exception I could think of is if the contract requires one or both parties to break a law (e.g. a contract to kill someone or to gamble).

1) They're not trying to validate a contract they're planning to issue with future digital music, they're saying first sale doctrine does not apply to all digital music ever
2) Any contract is not between you and EMI, it's between you and iTunes or Amazon or whatever.
3) You can't retroactively apply contracts to stuff you've already sold

[wiggin]

Ever heard of contracts? If a contract says that it remains my property, then it remains my property. No one forces people to buy goods under those terms. I fail to see why you think it's the government's role to so severely restrict what can and what cannot go into contracts. Why not forbid people from selling goods at too high a price while you're at it? The only reasonable exception I could think of is if the contract requires one or both parties to break a law (e.g. a contract to kill someone or to gamble).

I didn't have a chance to reply to this in earnest earlier (and I see others have taken stabs at it), but here goes:

AFAIK we routinely restrict the ability of someone to add certain terms to a contract in a sale. We limit what kinds of consideration are allowed. We consider if a contract is 'unconscionable' - i.e. excessively unfair to one party. We invalidate contracts if one party has undue influence. Etc. The basic underlying premise is that if there are overriding other concerns about e.g. fairness, we can limit what kind of contract you can legally enforce. IMO fair sale doctrine is such an overriding concern.


I see the argument if we're talking about licenses instead of sales - e.g. if you have music or software hosted on the cloud and never own it - but that's not what this case is talking about.

[Loki]

Just because we do it doesn't make it right. As long as both parties are informed, it's unconscionable to restrict their ability to exchange legal goods/services. It should not be the government's role to decide what is and what is not a good deal.

[wiggin]

But what if one party has an unfair advantage in the negotiation (e.g. a monopoly on the good in question)? Why should we allow contracts that include past consideration?

One of the core requirements of a government is enforcing contracts, and I think that this extends to far more than just whether the goods/services exchanged were legal. Obviously the government shouldn't be setting prices for things, but I don't find it unreasonable that it can place certain limitations on how contracts work on a fundamental level.

When people had special covenants on real estate contracts forbidding the buyers to sell to a minority, wouldn't you agree it was right for the Supreme Court to stem in and invalidate those contracts? Even if you were to suggest that discrimination is illegal so they were just enforcing the 14th amendment or somesuch, there are plenty of discriminated groups which are not protected - should you be able to force the buyer of a home not to sell to gays or single people? What about people with children?

The government's role in contract law is (and should be) far more complex than the simple world you suggest.

[Steely Glint]

They don't restrict anyone's ability to exchange goods or services, Loki. What they won't do is enforce contracts that don't meet certain legal formalities.

[Loki]

They don't restrict anyone's ability to exchange goods or services, Loki. What they won't do is enforce contracts that don't meet certain legal formalities.

Seeing that the main objective of government is to enforce contracts, there is no difference between the two.

But what if one party has an unfair advantage in the negotiation (e.g. a monopoly on the good in question)? Why should we allow contracts that include past consideration?

I didn't realize there's one company selling music. Incidentally, the monopoly has to be on a type of product, not on a specific product. Otherwise you get into the ridiculous situation of claiming that Nike has a monopoly on Nike shoes.

[Aimless]

Just because we do it doesn't make it right. As long as both parties are informed, it's unconscionable to restrict their ability to exchange legal goods/services. It should not be the government's role to decide what is and what is not a good deal.

Enforcing contracts and upholding justice are two of the most important and legitimate roles of government. The issue here is with what you consider to be "just" in the context of contracts. If something isn't blatantly illegal the govt might not step in unless asked to do so.

[Loki]

Enforcing contracts and upholding justice are two of the most important and legitimate roles of government. The issue here is with what you consider to be "just" in the context of contracts. If something isn't blatantly illegal the govt might not step in unless asked to do so.

Since when is it the government's role to overrule individuals to decide that contracts not signed under duress are "unjust"? I don't think a Lamborghini is worth $300k. I guess I should request that the government force all sellers to charge a lower price.