Comments on: Reselling MP3s: The music industry's new battleground?

A controversial digital music service helps others resell their MP3s, but it's likely going to have to face the music from the record labels.

[zombalicous]

this is important stuff and does not just pertain to MP3s

I think that M$ ran into this issue in the UK where it did not like that liquidators of defunct companies were wishing to offload licensed copies of M$ Office or Windows XP installations at a discount.

I see no reason that this should not be allowed (given that Dell is selling boxes preloaded with Vista licenses and trying to charge consumers an additional $150 for a downgrade to a 6 year old operating system instead of only selling the box with XP at a discount).

I think that if the RIAA succeeds in stymieing this right of sale, it would set a dangerous precedent which would effect other used digital software sales.

I do not know how the UK M$ resale software issue turned out unfortunately.

[JunkSiu]

There is a difference between reselling xp/office licenses and mp3.

The xp/office come with individual cd-key/ sticker, or even come with the installed machine, which is a proof of legit ownership.

While mp3 has none of those proof. When buying "second hand", one can never know if they are buying a legit copy originated from Amazon, iTune, and also cannot know if the seller is really deleting all copies from his/her own storage device.

[BigGuns149]

Dell is wise enough to realize that most consumers are essentially stupid. With a few exceptions a lot of the time Dell's custom build configurations become real ripoffs once you start configuring the machine past the base config. They are often selling an memory upgrade for more than the the total amount of memory costs at retail. Ditto for hard drive upgrades.

While some people in the know may laugh at why do this makes sense, Dell is laughing all the way to the bank.

If you really think your only options to get XP are Dell or going to liquidation sale to buy a computer that will surely cost more than the XP license than you really are clueless, but then again this is CNET so stupidity isn't unusual. Heck, even some of the writers make such mistakes so what can you expect.

Furthermore, I don't think M$ has nearly as much problem with people reselling XP as you think. Piracy is a much bigger issue than people reselling old M$ software. Due to concerns with people selling you counterfeit software that doesn't activate properly I know a lot of people who won't buy M$ software secondhand because they are so jaded from by ripped off from con artists in the past. I remember trying to selling a new copy of Office 2007 for less than half MSRP on Craigslist and didn't so much as get anyone to give me a lowball bid.

Furthermore, I don't know about the UK, but at least in the US there is legal precedents for the notion of the "doctrine of first sale" for computer software. Ironically, even if the EULA bans resale the courts have ruled that one can STILL resell the software. I really don't see why the RIAA would care about software since they are a lobbyist for the music industry. Maybe the BSA cares, but I doubt the RIAA gives &*#@.

Finally, I don't see how the doctrine of first sale would have to do with selling non-physical products. While I could in theory make a copy of a CD or DVD and sell the original, I am not breaking any laws selling the original, but I am breaking the law if I sold the copy. With digital "goods" the moment that I upload a copy to the server of this reseller, I have created a new copy. IANAL never mind a IP attorney, but I would be skeptical that any judge is going to view the doctrine of first sale extends to a Non-excludable good, which I think most judges would find an MP3 file to being such.

[Lerianis]

I have to agree that this is important. There is an issue here with 'Since these are digital downloads, what if the person 'sells' the thing and keeps a copy of it for themselves?" but then again..... that has been the same with video games since CD days, and they haven't been able to say that you cannot resell CD games if you are selling the actual, legitimate download.
The RIAA is going to have to realize that the time of physical music and of 'recording companies' is coming to an end. They might be able to charge for stuido time, but no more for making downloads available, making CD's, etc. ONLY FOR THE ACTUAL RECORDING STUDIO TIME!
Musicians are also going to have to realize that they are not going to become rich off their music anymore, and are going to have to start working a job like anyone else, doing concerts, etc. in order to make their money.

[benjwah]

Musicians do work jobs, like everyone else. What does that mean, "like everyone else"? I've been working a job "like everyone else" for damn long time, and so has every other musician I know.

[Grifter02]

How is the risk of someone selling a digital download and keeping a copy any different than the risk of someone selling a CD they already ripped to their computer? Books, movies, video games, every type of digital media can be copied before you sell it regardless of whether it's on physical media or not.

And Patrick Ross' statement "It's also hard for me to imagine the model succeeding because if somebody wants to pay for works they will pay for it at a legal site and see that creators are compensated. If they are willing to break the rules, they would just go on (P2P service) Lime Wire and get it for free." doesn't even make sense! How is buying a used product "breaking the rules"??? People buy used CDs all the time and they know full well that the money is not going to the artists.

[patch991]

Awesome points Grifter02! Just another example of the RIAA trying to be Big Brother and policing the entertainment industry. Last I heard, it was the politicians that wrote the laws with the legal system enforcing them!

[BigGuns149]

There are a couple of problems both legal and perhaps non-legal why I question this idea.

The legal questions are the most obvious. With selling a CD, the difference is that there is legal concept called the "doctrine of first sale" that protects reselling of books, CDs, software, etc. If I make a copy of the original and sell the original depending upon my use of the material the copy MIGHT be fair use and it might not be in which case my copying is illegal, but selling the original authorized CD, book, etc. isn't a crime.

The problem that I see any reseller of MP3s face is proving that attached to EVERY MP3 there was backed by a legal purchase of said song. A MP3 that was legitimately purchased from Amazon and a bit for bit copy of the same MP3 are identical and no amount of digital sleuthing will distinguish the legit MP3 from an illicit one. What would stop one from a la ALLmymp3.com and simply copying the same MP3 repeatedly and claiming to sell a "used" MP3 file? Short of paying a royalty to the artist for every MP3 sold how would the reseller keep their nose clean with the law? If you are paying a royalty to the artist for every MP3 than I don't see how they are any more used than the tracks that Amazon sells, because there would be no rational reason to give the owner of a MP3 anything for their "used" MP3.

From a more practical sense, why would someone pay for something they know is illegal or at least ought to know is illegal when they can get the EXACT same thing through a P2P network without paying the shuckster? If you are going to break the law you might as well not get ripped off in the process. This is why I never understand how there is still demand to buy illegal copies of DVDs at a swap meet when you can buy download a illicit copy for less money and maybe even better quality sitting at home. Save for developing countries where they don't have broadband or some rural parts of America I don't see the point.

[umbrae]

I do not see the labels agreeing to this unless they are seriously cut into the profit margin, or unless laws are altered to support digital media. There have been some decisions about the resale of software, but in all cases this included the physical media (CD/DVD) as well as the license. If there is no transfer of physical media the 1st sale law will not stand up in court.

Personally, it sounds like the owner is just trying to raise capital and then run with the money. I do not think he is actually trying to build a viable company. Either that or he is a tech idiot.

As much as I would like to see something like this, it is not going to happen until copyright laws are rewritten.

[freemarket--2008]

The music (and film) industry should add digital watermarks and unique ID codes to each copy sold. That links the product back to the original buyer and allows legal transfer of ownership.

[Lerianis]

Little problem: those things are hellishly easy to remove, and they KNOW that they are very easy to remove.

[Imalittleteapot]

Bluray already has this, but it links back to the device that was used to play or rip the movie and not the person that bought it. Same basic concept though. However, it's pretty much already been hacked. Not 100 percent hacked, but pretty close.

[mwa423]

But in terms of the first sale doctrine, I can now go buy a CD from the store, come home, make an exact digital copy, and then sell the cd to somebody else and have the same situation here. If I was motivated enough, I could go buy a book, photocopy it, then sell the book. The digital world has already made it nearly impossible to ensure that only the physical media is being sold/traded without a copy of it being kept. Heck, even going back as far as cassette tapes you could dub a copy then sell the original

[gsigas]

In your examples the act of selling the physical object does not rely on you having made a copy for non-personal use (so copyright violation is unknown because you may or may not have violated copyright by keeping a copy), but in the case of this service the act of selling your MP3 requires the seller to make a copy for re-sale (non-personal use) so the copyright violation is clear.

[Sam Papelbon]

@gsigas

that argument cannot be used, otherwise itunes/napster/every other mp3 retailer would be violating copyright for selling 'copies' of the original file. unless you expect the record label to transfer 'new' mp3s to replace the ones they sell, or else start selling mp3s by distributing them on usb drives or flash cards.

[gsigas]

The argument can be used because the retailers are authorized to make the copies for resale (in the same way that a print shop or DVD manufacturer can be authorized by a publisher to make copies of their book/movie), end users are only authorized to make copies for personal use.

[nicmart]

Most of the controversies in America now devolve around which lawyers will prevail.

[TV James]

I agree with @freemarket - watermark the files. No need to DRM them, but watermark them.

I'm sorry, but why would I buy from this site? The person selling the song probably got it off of LimeWire. I'm going to buy from a source I trust like Amazon or iTunes (and then de-DRM it) rather than the digital equivalent of the guy on the street corner in New York selling DVDs from a cardboard box.

[Sam Papelbon]

"The person selling the song probably got it off of LimeWire."

finally the nail's been struck. if the lack of drm is the only requirement to sell a file on this site, what is to stop someone from selling all the songs they downloaded from non-sponsored sources? the simple solution would be if songs from itunes and napster had some kind of encrypted tag in the file to identify itself as originating from an actual service without actually hindering the playability of the file in any way. however this type of watermark would probably be easily reverse-engineered and somebody would just whip up a 'make your mp3s into ones you can sell' program and we're back at square one.

and how would they ensure the files are music at all? just because of an 'mp3' extension? are they going to try listening to every song uploaded to make sure there are no skips and that it isn't just a virus in a shiny wrapper?

i would be all for this kind of service if it could be feasibly controlled and maintained, but it would simply require too much time and manpower to keep it clean for it to be profitable, especially when you consider the price people usually get/pay for used cds compared to new.

[lachlan.hunt]

@TV James, no, absolutely not. See "Why watermarking is a bigger devil than DRM"
http://blogs.zdnet.com/Ou/?p=696&tag=nl.e622

[sebastien.kalonji]

And this is why DRM will never disappear. DRM would allow songs to be resold and it would even give digital music it's value back.

[Lerianis]

Wrong. Every single kind of DRM is EASILY REMOVABLE, if you are willing to work at it hard enough (and you don't even have to work hard). The fact is that the times are changing, some things are going to totally lose their value and be unable to be sold anymore.
It's the same way that tallow candles aren't sold anymore (except as backups) because of light bulbs.

[Renegade Knight]

You have to get back to the reason for the sale to begin with. Enjoyment. If DRM gets in the way of my enjoyment...there is nothing to sell me. I'm not paying for a hassle.

[knowles2]

Well if they think it a poor business model then perhaps they should let him do it and sign a legal agreement stating he can do it, after all it going crash and burn right so they should not really wast their resources battling against it in court.
And to the company, just move to Russia where the courts seem to protect you from the entertainment industry Mafia.

[freemarket--2008]

That's because the Russian mafia doesn't like competition. ;-)

[Dalkorian]

I hope Bopaboo survives just to give a really big and well deserved middle finger to the RIAA. Besides, I could just rip all my CD's I've collected over the years and sell off the tunes one by one, making some bank on my investment without losing anything. I could also sell off all the tunes I "pirated" from Napster before it turned to prostitution, plus any albums I can find on The Pirate Bay, plus ...

Dang, I'm rich!

;-)

[hatmon]

Patrick Ross misses the point when he says why would anyone pay for second hand mp3s when they can be downloaded illegally. The point is that using bopaboo is not illegal. I don't use torrent sites because I don't want to break the law but I fully intend to use bopaboo to buy second hand mp3s. I don't know how the law works in the rest of the world but in England it has been asserted by legal authority that if there is not a law against something then it follows that there is a right to do it. There is no law against buying and selling second hand mp3s therefore I have a right to do so.

[gsigas]

I imagine there is a law in England against receiving stolen or counterfeit property. All that has to be determined is if the act of someone providing a copy of a protected work (like an MP3 of copyrighted material) for resale without the copyright owner's permission is considered theft or counterfeiting. They don't need to have a law for each specific item (ex. a law prohibiting the theft of shoes and another prohibiting theft of shirts and another prohibiting theft of pants, etc.)

[tobor68]

while i don't think the labels will agree to this without a big cut, i do think this service would be a waste of time.

i personally think paying for digital downloads is on the way out. there is no way to compete with free. period. the end.

one of the disadvantages of mp3s to the consumer is, specifically, their first-sale rights are toast, for the same reasons that digital copies plague the labels antiquated business model.

i don't condone piracy (the SELLING of copyrighted, ILLICIT goods for PROFIT). IF i were to agree with the idea buying an mp3 from itunes, for example, 99¢ if far too steep a price to give up my right to first-sale to the record labels.

my loss of my fair use should come at a much higher price to the labels than it presently does. 5-10¢ per digital copy, or at least enough to cover the cost of the bandwidth, as i am also paying for that bandwidth from my end too.

otherwise, once a 'sale' is made from it's source (eg. itunes store) no amount of DRM is going to keep it out of the wild. it will be replicated and shared amongst friends, forever and ever, amen.

a recording is, again, what it once was, an advertisement demonstrating the talents of a performer. and if they were any good, i would most certainly spend the money to see them perform.

[wawadave]

I can see the riaa legal dragon sharpening its fangs and tuneing its roaring flames.

but i like the idea of being able to sell what you no longer have a use for.
why should the riaa keep getting to turn a profit over and over on the same mp3!!

[sarah_oneill]

At least someone is trying to get people to pay for music in innovative ways - if completely ineffective. Here's an <a href="http://www.atelier-us.com/internet-usage/article/bopaboo-legal-chaperoned-file-sharing">interesting related article</a>.

[David Mohring]

Maybe it is time to Acknowledge the doctrine of first sale and private use
http://itheresies.blogspot.com/2005_05_01_archive.html
"The doctrine of first sale applies to both physical media and digital content where the receiver pays a transaction for particular instances of a copyrighted works: When you purchase an instance of a copy of copyrighted work that involves the buyer making a choice for that instance of copyrighted work and entering into a transaction with the seller, then the buyer has the rights to that instance under the doctrine of first sale. Sellers of instances of copyrighted work cannot hide behind "provision as a service": when you pay for an instance, you own that instance."

[ADMusic]

Part of a series of comments on the independent label AD Music blog:
The idea defies all commonsense and logic. On the face of it, the owner of Bopaboo seems sincere in wanting to work with copyright owners. But the reality is that if it is allowed, other unethical people WILL exploit the idea and it will become yet another method of illegal downloading, and that?s why I?m so vehemently against it. Once again, I am forced to conclude that the people who have these ideas do not think them through in any shape or form (apart from how it can benefit them!), because it?s obvious to anyone with an atom of sense that once this genie is out of the bottle it WILL, without any shadow of a doubt be abused and exploited to the detriment of independent musicians and labels.

Why the hell can?t these people have an ORIGINAL idea of their own and then use their knowledge of technology to exploit THEIR idea instead of always using technology to exploit and profit from someone else?s creations?!

I know that people will use the argument that; ?If I?m allowed to resell my physical CD, then why shouldn?t I be allowed to resell my digital download?? On the surface that may appear a valid argument, but it doesn't require much grey matter to realize that it?s totally different because of the very nature of digital media and the ability to be so easily abused and exploited illegally, and more importantly, the inability to police it. The floodgates that such an idea would open is frightening. I hope all independent musicians and labels will vigorously oppose this idea by whatever legal methods available.

Reselling a physical CD album is one thing, but selling digital music ?second hand? is just plain madness and the repercussions for independent music would be disastrous.

Just because we have the knowledge and technology to do a thing, it doesn?t mean that we have to do it!

[ADMusic]

Part of a series of comments on the independent label AD Music blog:
The idea defies all commonsense and logic. On the face of it, the owner of Bopaboo seems sincere in wanting to work with copyright owners. But the reality is that if it is allowed, other unethical people WILL exploit the idea and it will become yet another method of illegal downloading, and that?s why I?m so vehemently against it. Once again, I am forced to conclude that the people who have these ideas do not think them through in any shape or form (apart from how it can benefit them!), because it?s obvious to anyone with an atom of sense that once this genie is out of the bottle it WILL, without any shadow of a doubt be abused and exploited to the detriment of independent musicians and labels.

Why the hell can?t these people have an ORIGINAL idea of their own and then use their knowledge of technology to exploit THEIR idea instead of always using technology to exploit and profit from someone else?s creations?!

I know that people will use the argument that; ?If I?m allowed to resell my physical CD, then why shouldn?t I be allowed to resell my digital download?? On the surface that may appear a valid argument, but it doesn't require much grey matter to realize that it?s totally different because of the very nature of digital media and the ability to be so easily abused and exploited illegally, and more importantly, the inability to police it. The floodgates that such an idea would open is frightening. I hope all independent musicians and labels will vigorously oppose this idea by whatever legal methods available.

Reselling a physical CD album is one thing, but selling digital music ?second hand? is just plain madness and the repercussions for independent music would be disastrous.

Just because we have the knowledge and technology to do a thing, it doesn?t mean that we have to do it!