by , 10:00 AM EDT, September 9th, 2003
Less than a week ago, we reported that George Hotelling was trying to resell an AAC file that he purchased from the iTunes Music Store in an attempt to draw attention to the issue of property rights in the digital age. eBay claimed that the sale violated its Downloadable Media Policy and dumped the auction, but not before Hotelling's auction had made something of a splash. In addition to getting the brief attention of a chunk of the 'net community, the auction caught Apple's attention.
In an article at C|Net, Apple's director of marketing for applications and services, Peter Lowe, is quoted as saying that while reselling an iTMS song would be impractical, it may be well within one's rights to do so. Lowe goes on to explain how a person would go about transferring a song, but dodged the question of whether or not such a transfer would violate the iTMS terms of service. From C|Net:
"Apple's position is that it is impractical, though perhaps within someone's rights, to sell music purchased online," Peter Lowe, Apple's director of marketing for applications and services, told CNET News.com in an interview.
[...]
Under the "First Sale" doctrine, the owner of a lawful copy of a work is allowed to sell it without the permission of the copyright owner. But legal interpretations of the doctrine, most recently from the U.S. Copyright Office, have found that the doctrine does not apply to digital goods, according to online copyright experts.
[...]
Apple's Lowe left unaddressed the question of whether a transfer would violate iTunes' terms-of-service contract, focusing instead on technical and other barriers to such a sale. "They would have to somehow give their account info to the person they were selling to in order to get their Mac authorized to play the music being sold," he said.
There's more information in the full article at C|Net's Web site.
The subject of the First Sale doctrine is a very interesting topic, and we are glad to see it get so much attention. All of us are even now in the middle of a fundamental shake up in the way our culture and government consider such issues as rights in the digital age. Though we seldom tend to think of it in such terms, history will look back on our time and our actions when trying to pinpoint the nature of the change that is occurring right now, all around us.
Hopefully we will not see the balance of power continue to shift so much in favor of corporate interests (though you can consider us on the cynical side of that hope), but it takes people like George Hotelling to get us thinking about these things in the first place. Anyone can do something to raise an issue, but in this case, it was Mr. Hotelling who got folks thinking and talking about this. So, cheers to Mr. Hotelling!
It will likely take a court case to specifically determine if the Right of First Sale exists in the digital world, but again, at least we are thinking about the issue.