A Francis Hwang recently attempted to resell his ‘Special Edition U2’ Apple iPod on eBay preloaded with several songs from Negativland, a band famous for being sued by U2’s publisher ‘for allegedly using an unlicensed sample of “I still Haven’t Found What I’m Looking For”.’ Hwang marketed his sale as the ‘Special Edition U2 vs Negativland’ iPod and, unsurprisingly, eBay pulled the auction at Apple’s request.
Now the infamous MP3 player is once again on the market, this time by private auction:
‘I paid money to Apple and I used my own credit card to buy a U2 iPod’, said Hwang, ‘This thing that I’m selling is mine to do so.’ …
Hwang said his Negativland vs. U2 iPod does not violate any of Apple’s intellectual property rights: It cannot be confused with an official Apple product, and because he bought the Negativland CDs and the original iPod, he’s at liberty to resell them …
eBay may have hung up the towel, but Hwang still wants someone to buy what he calls a piece of “intellectual property history.”
This sounds a tad opportunistic to me. In using a mark closely related to Apple’s own, he was asking for trouble. The main issue is whether there was exhaustion once the original object had been sold with Apple’s consent. It is not difficult to see how someone in his position might find it unfair to be subject to restrictive licence terms which limit his ability to resell the iPod. However, it is unclear whether, were he to divest himself of the item, he would also alienate and transfer the underlying licences to the songs, and any other copies of them.
