Is Selling a Loaded iPod a Fair Use Issue?

Here's an article from USA Today about vendors selling fully loaded iPods on eBay. Is this a legitimate fair use issue? My gut reaction is no—if vendors were selling loaded iPods for market value or used value, it might not trip my BS detector. But when you are charging several hundred bucks extra for the 11,000 songs you've loaded on the iPod, it seems to me that you've crossed that fair use line in the sand—we've established what you are and now we're just negotiating price.

Your thoughts?

COMMENTS
Buddha's picture

I'm having cognitive disonance. On the one hand - BRILLIANT!!! On the other hand, it's wrong. Brilliant, but wrong. On the third hand, who has time to figure out how to download 11,"000 songs? Maybe this is a sign that it's time for ""iPod loading"" services to begin popping up. Is the market ready for iPod concierge service? iPod butlers? Hey", if there are people who are too busy to walk their dogs, why not start a new service offering iPod wranglers? So, those sales are wrong, but they are demonstrating a new market niche that needs to be filled.

Monty's picture

This is one of those things that just doesn't seem to have a workable solution. It's sorta like the war on drugs in that you have a demand that is going to find a supply no matter what you try to do about it. You can make it illegal, but if you can't effectively enforce the law you really aren't doing anything more than creating as many problems as you are solving.

Jeff Wong's picture

I suppose it will all boil down to what rights are transferable. I suspect it is a clear violation of copyright. Even if the new owner has the the same discs, there may be an issue because he or she didn't make the back ups, or the back ups weren't made from those very originals. What I want to know is, am I buying a license or a product? The RIAA wants it both ways. I've already paid for the LP version, the CD version, the remastered CD version... what did I get for my money?

Al Marcy's picture

Money is just a game some of us play. Spending is part of the game. Posing as morality mavens is just a crude attitude ;) 'Music hath charms to soothe the savage ...'

Fred von Lohmann's picture

As a copyright lawyer, let me assure you that the legal question is complex. If the original copy was a fair use," then selling the iPod with the copies aboard would be legal as a ""first sale."" The trouble is figuring out whether the original copy was a fair use (since fair use turns on a case-by-case analysis of the facts). On one end of the spectrum", if I had made all my copies over the years for personal use with no intent of selling them, that would likely be viewed as a fair use (Apple better hope so!). When I decided, some time later, to sell my computer or iPod, there is nothing in copyright law that requires me to erase those copies. On the other hand, if I had a business of making copies just to pump up eBay bids on loaded iPods, then I think a court would say the initial copies would not qualify as a fair use. I'd be busted even before I sold the iPod. Of course, the reality is that cases only get brought when the copyright owner thinks it can win, so expect court cases more like the latt

Wes Phillips's picture

Wow! Fred von Lohmann reads my blog! Thanks for putting what I thought was my point in perspective. The big problem with selling older iPods is I don't think they're particularly long-lived. Obviously, loading 'em and selling 'em is a business, but sitting on them presents a risk, too. I think we need to make sure our representatives understand that these are complex issues or they are far too likely to make them simple for us. That's why I support Mr. von Lohmann and the EFF.

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