EBay Negative on Negativland IPod
By Katie Dean

02:00 AM Dec. 08, 2004 PT

EBay removed a modified U2 iPod from its auctions Monday after Apple Computer complained of copyright violations, to the wonder of several intellectual-property attorneys.

Francis Hwang, an artist and director of technology at Rhizome.org, purchased a U2 iPod and loaded it up with seven albums from Negativland, a collage band that mixes original music with audiovisual clips from other artists and corporations. Hwang wanted to make an artistic statement about sampling and free culture, and planned to donate the proceeds of the sale to Downhill Battle, a music-activism group.

"This unauthorized iPod modification is an artful mashup of the forces of corporate megarock and obscure experimental music, and a provocative symbol of the ongoing struggle between those who would confine culture and those who would free it," Hwang wrote in the auction listing. "With the recent release of Apple's iPod U2 Special Edition, and the continuing legal battles over the sampling and copying of music, there has never been a better time for such a tribute to the impact of technology on the flow of culture."

The iPod U2 vs. Negativland Special Edition commemorates a 1991 copyright battle between the two groups. Negativland released a single that parodied U2's "I Still Haven't Found What I'm Looking For" without permission. The collage group believes the song, and its other creations, are fair use. U2's label, Island Records, sued Negativland and the case was eventually settled out of court. Negativland's controversial song, "U2," is illegal to sell in the United States and was not included in the auction.

Hwang's auction offering included all the standard features of the U2 iPod plus the addition of the Negativland albums loaded onto the device. The Negativland CDs were also included. Hwang also meticulously modified the cardboard box, labeling it iPod Special Edition U2 vs. Negativland and adding pictures of the collage band to the box. Hwang also included a disclaimer in the auction that states that Apple did not authorize the work, so there is no confusion for the buyer.

Hwang, an iPod and PowerBook owner and self-described "Apple snob," thought the revamped iPod would be funny and raise awareness of a case that is still relevant today, especially with the popularity of mashups.

"It just feels right to me that I should be allowed to do this and I'm a little surprised that they reacted this way," Hwang said. "I think it's pretty unfair and I think it's unfortunate."

The item received nine bids -- topping out at $455 -- before it was pulled "because an intellectual-property rights owner notified us ... that your listing infringes the rights owner's copyright, trademark or other rights," according to an e-mail Hwang received from eBay.

EBay spokesman Hani Durzy said that the company has a program in place that allows copyright owners to report specific listings that violate their rights. Also, because the listing made it clear that the item was unauthorized, the listing was removed.

Apple did not respond to requests for comment.

Several intellectual-property attorneys said they didn't see a reason for removing the listing.

"If he's just modifying the box, he's just reselling the box that the goods came in," said Scott Hervey, an attorney based in Sacramento, California. Plus, "there's no copyright infringement of the sound recordings."

"I don't see anything and if (Negativland) is not making a stink about it, then there's no problem," Hervey said. Negativland could presumably complain that its pictures are being used without permission.

"We always have to be careful when people invoke intellectual-property rights in order to stop things that have nothing to do with IP," said Fred von Lohmann, senior IP attorney at the Electronic Frontier Foundation. "I'm a little surprised that Apple would complain but I'm doubly surprised that eBay would remove the auction."

I have a friend who made a collage film about Negativeland called Sonic Outlaws. There's some serious fair use troubadours in my town.