The Recording Industry Association of America is warning consumers that it is illegal to sell a used iPod that is pre-loaded with digital content. “Selling an iPod pre-loaded with music is no different than selling a DVD onto which you have burned your entire music collection,” the RIAA said in a statement to MTV News. “Either act is a clear violation of U.S. copyright law. The RIAA is monitoring this means of infringement. In short: seller beware.”
Andrew Bridges, a lawyer who specializes in copyright and trademark law, says the law is not so clear. “It really depends on the individual circumstances,” he explained. “I’m not sure the law is settled. If I’m a college student and I want to supplement my income by buying 100 iPods and taking my CD collection and putting it on those iPods and selling them at a significant premium, that’s probably not going to fly. But if I’ve had my iPod Shuffle for two years and I’m tired of it and I go out and buy a 60 gig video iPod and want to sell my old Shuffle, but don’t want to purge the music first, that’s probably legal.”
“There is very clear provision in the statute that says that if you are in possession of a copy that has been lawfully made, you can distribute that copy without violating the copyright holder’s copyright,” said Bridges. “That seems to suggest that there shouldn’t be a case against a casual user disposing of copies they made for personal use when one is getting rid of one’s own iPod.”
RIAA President Cary Sherman disagrees. “Unlawful reproduction or distribution is infringement.” he said. “There is no fair use when someone is getting a complete copy of a work, especially a creative work and especially when it could have an adverse impact on the marketplace for selling or licensing that work. When you buy a CD, you have it for personal use on your computer or iPod, but you can’t give it away and keep it for yourself. That’s having your cake and eating it too. If everyone did that, [record labels] would only sell one CD.”