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eBay pulls iTunes song auction

Infringes auctioneer's Ts&Cs - what about the law?

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eBay yesterday yanked an attempt to auction an iTunes Music Service download off its site, describing the item as "invalid".

The auction page itself now simply says: "The item you requested... is invalid, still pending, or no longer in our database. Please check the number and try again. If this message persists, the item has either not started and is not yet available for viewing, or has expired and is no longer available."

The item was a file purchased from Apple's online music store by one George Hotelling and downloaded to his Mac. Hotelling posted the file specifically with the intention of testing the reaction of the Mac maker, eBay and the music industry to such a trade.

Is selling on a downloaded song the same as selling a CD, he asked?

eBay's move doesn't answer that question. eBay made its move because the auction violated its regulations on the sale of electronic media which can be distributed via the Internet. eBay already prohibits such sales. However, just because the auction runs contrary to eBay's Ts&Cs doesn't necessarily make it a copyright violation. eBay is - quite understandably - playing it safe.

The consensus among Reg readers is that the purchasing a physical medium is not the same as buying a download. In the first case you're buying the physical disc, in the second, you're actually buying the song, so the US' 'first sale' right doesn't apply.

We think the point's still moot, however. If 'first sale' rights are granted when you by a CD, because you're actually buying the disc not the song, you could argue that the same applies to a file. A file can be defined as a data carrier as much as a disc, particularly when it's essentially an authorised copy of a 'master' file.

We're no lawyer, but that's an argument that could be made, and the only time the question is going to be settled is when it is indeed argued out through a legal challenge. Again, that's something eBay itself will be keen to avoid. ®

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