The Right to Resell the Digital Music Files You Bought

By Richard Menta 9/3/03

A very interesting test is going on, one that seeks to define what ownership means in the digital age, at the very least it challenges its bounderies.

A gentleman who purchased the song Double Dutch Bus by Devin Vasquez from iTunes has put that song up for sale on eBay. He wasn't satisfied with the song, a cover of the Frankie Smith original, and decided to sell it, transferring ownership of the file to the highest bidder.


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The present owner, whose website is george.hotelling.net (don't know if that's his name), says that after he sells the file he will erase the original on his drive, thus actually giving up ownership of the music to make the transaction a transfer and not just selling a song copy (different from file trading as money actually trades hands to consummate a deal).

"I just posted an eBay auction for a song I bought from the iTunes music store", states the owner on his website. "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?"

So the question is this, are digital files of music or movies chattle? Chattle in legal terms is any object and the owner of such an object has the right to freely sell, give away, trade or will that object. CDs are chattle. DVDs are chattle. Cattle are chattle. Are digital music files chattle? Technically yes. It is an object sold by a retailer with the permission of the entity that produced it. It's not a copy from a file trader, it's an original product (replicated from a master like a CD and a DVD are replicated).

Until a law comes about specifically excluding digital files, why CAN'T you sell it? Of course every point I have made so far can generate a reasonably dissenting opinion. The owner continues on his web site with these three points:

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.

Give this guy credit for coming up with a simple, but serious point. No doubt Apple and the music industry will add some language in the fine print saying these files are non-transferrable, but that doesn't mean they have the power to revoke ones right to sell their own property and this person's song file does qualify as property. If they could do that, they could revoke your right to sell your old CDs at the local garage sale.

Looks like this is just another thing for the courts to decide. That won't happen until the record industry or Apple challenges this sale. In this case, with all the free file swapping going on, they might just decide to pick their battles and ignore it - for now.

You can see the eBay listing here. As of this writing the high bid for the $0.99 single is up to $810.00. I guess this means the market value of a 12-song CD is $10,000. Well almost, the listing does have six more days of bidding.

And I thought $20 a CD was too much. What a fool I was!

 

Other MP3 stories:
CDs and the Scarcity Principle
Review: The Archos AV320 MediaBox
Copyrights: Two-thirds of Adult File Traders Couldn't Care Less.

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