No, You Can’t Sell Your “Used” iTunes Songs Online

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If you ever had hopes of cashing in your iTunes library to make ends meet, think again: a federal judge has declared reselling your MP3s online, saying the first sale doctrine is not applicable.

The ruling was handed down from a federal court in New York on Saturday, where the case of Capitol Records v. ReDigi was being heard.

ReDigi was a Boston-based startup that allowed you to “resell” your old iTunes songs online. It worked like this: you uploaded a song from your iTunes Library, which was then run through an algorithm, supposedly, to figure out if it was legally purchased. It was then deleted from your machine, and someone online could then “buy” that MP3 from you at a fraction of the price, at which point, the copy was deleted from ReDigi’s servers.

It’s a bit fishy, because of course, if you purchased the MP3 through iTunes, you could then just download it all over again. ReDigi said, however, that they were protected by the first sale doctrine, which allows consumers to resell goods they have purchased.

The judge in the case, however, said that the first sale doctrine doesn’t apply to digital goods, since a copy has to be made to transfer it online. Therefore, ReDigi wasn’t selling the MP3 that had actually been downloaded… it was selling a copy, which isn’t protected by first sale.

ReDigi can still appeal the decision.

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  • CharilaosMulder

    I hope Apple will eventually allow for second hand purchases originally purchased in iTunes, iBooks or the App Store. Because if Apple did, they could easily remove the items from your purchased list, rendering the story of selling a “copy” obsolete.

  • LDMartin1959

    “The judge in the case, however, said that the first sale doctrine doesn’t apply to digital goods, since a copy has to be made to transfer it online. Therefore, ReDigi wasn’t selling the MP3 that had actually been downloaded…”

    By that logic, since the copy I downloaded is not the same file that resided on Apples servers, (since a copy has to be made to transfer it online) and since the copy on my iPad is also not the same file that resided on Apples servers, (since it is a copy of the original, which had to be made to transfer it online) no one can legally listen to any music they’ve downloaded, not Apple or anyone else can legally interfere with someone removing the DRM from the file (since the copy that is being DRM’ed is not the copy to which the DRM was legally applied), and on and on.

    Clearly, this is a ruling by a judge who has little understanding of technology and the ramifications of his ignorant and uninformed legal decision.

  • ekim1406
  • kriswm

    i think they should just let this one go. this seems like a stupid thing to fight for. apple would never be able to offer resell. why let you sell it for a fraction of what they’re offering it for. Even if they took a cut of your sale, it would still be less than what they’d get if they sold it from their own store. Not to mention the label and artist would want a cut of that resell. Why did someone think this would be a good idea?

  • Robert X

    There should be no resale of electronic goods. That is ludicris.

  • booree

    As long as I remember buying songs on the Itunes doesn’t mean you are becoming the owner. I think T&C stays you are only being given a lifetime permission to use it. I am not 100% sure but I must have red about it somewhere before.

  • FreaknUnoriginl

    By that logic, since the copy I downloaded is not the same file that resided on Apples servers, (since a copy has to be made to transfer it online) and since the copy on my iPad is also not the same file that resided on Apples servers, (since it is a copy of the original, which had to be made to transfer it online) no one can legally listen to any music they’ve downloaded, not Apple or anyone else can legally interfere with someone removing the DRM from the file (since the copy that is being DRM’ed is not the copy to which the DRM was legally applied), and on and on.

    Clearly, this is a ruling by a judge who has little understanding of technology and the ramifications of his ignorant and uninformed legal decision.

    The issue is whether or not first sale doctrine is applicable to a copied file. The judge’s decision has no effect on the license Apple grants to a user of iTunes. You can make copies of the file, as long as it’s permitted by the EULA. You have no ownership in the copies, and thus no rights associated with the copies except those granted by Apple.

    Copyright covers many rights of the creator. The two important ones here are reproduction rights and distribution rights. In the US, right of first sale allows for distribution. Very specific reproductions rights are, in a very limited way, granted by Apple to iTunes users. And Apple gets their reproduction rights from the record labels, with a broader-but-still-limited manner.

    The legal reason right of first sale doesn’t apply is because there is no original to distribute. The only way to distribute software (including data) without reproducing it is by physical media. Courts HAVE recognized this, and favored resellers of physical media software even when it violates the EULA, because a transfer can occur without reproduction.

About the author

John BrownleeJohn Brownlee is a Contributing Editor. He has also written for Wired, Playboy, Boing Boing, Popular Mechanics, VentureBeat, and Gizmodo. He lives in Boston with his girlfriend and two parakeets. You can follow him here on Twitter.

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