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Three months ago, artist Francis Hwang was blocked from selling an unauthorized Special-Edition Negativland vs. U2 IPod on eBay's auction site after Apple complained it violated its copyrights.
So now Hwang has decided to ditch eBay. He's selling the iPod on his own website with the intention of turning a statement about pop culture into a free speech issue -- even if Apple launches a legal challenge.
Whether Apple likes it or not, this is a modified iPod Hwang intends to sell.
Hwang, a director of technology at Rhizome, a digital-arts collective, initially put the iPod up for auction in December.
But one day before the auction ended, he received an e-mail from eBay telling him it had canceled the sale at the behest of Apple, which claimed the iPod infringed its copyrights.
Hwang tried to contact Apple for an explanation, but received no reply. He has yet to receive any notice as to what, if any, copyright violations occurred.
"I think it's unfortunate that Apple didn't explain to me or anybody else why they did it," said Hwang, "That kind of behavior seems to speak of an attitude that is very corporate; you are accountable to the shareholders and customers but not to anybody else."
EBay may have hung up the towel, but Hwang still wants someone to buy what he calls a piece of "intellectual property history."
Hwang loaded the iPod, originally a U2 Special Edition model, with seven albums from Negativland.
The band was sued in 1991 by U2's label, Island Records, for allegedly using an unlicensed sample of "I still Haven't Found What I'm Looking For." The suit was settled out of court and the Negativland song pulled from distribution.
Hwang said he made the iPod as a statement after seeing Apple iPod adverts featuring U2. He thought of all the bands Apple could have used, U2 was a weird choice because of its Negativland lawsuit, which he considered anti-artistic.
"When you look at the Island Records v. Negativland case you see an internet era intellectual property case before the internet," said Hwang.
But what started as an ironic pop-culture joke has now turned into a free speech and consumer rights issue.
"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 may be playing with fire. Apple is famously litigious. The company has sued many times to protect its intellectual property rights and trademarks, and is currently suing several journalists for allegedly misappropriating trade secrets.
But Hwang said he is confident Apple will not take legal action. The company, he said, has no legal grounds whatsoever to object to the iPod's sale.
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.
"I'm not a martyr," he said. "I'm not going to take a fall so people can feel good about themselves. I want to show that if you pick your battles carefully you can win."
Jason Schultz, staff attorney at the Electronic Frontier Foundation agreed.
"The key is to be upfront and disclose that information and then there is no misrepresentation at all," said Schultz. "Apple has no copyright claim over an iPod once they sell it to you."
Hwang said he's conducting the auction to stand up for himself and what he believes in.
"It's a matter of principle," Hwang said. "This is something that I spent a lot of time on, I was excited about and wanted to see done and Apple stopped that. I don't think they have a right to do that."
Hwang doesn't consider himself vindictive or anti-Apple, "though I'm pretty annoyed with them in this case," he said.
Anyone who visits the archived eBay auction site can see Hwang put a lot of time into his special-edition iPod. Hwang loaded the iPod with 87 Negativland songs, and customized the cardboard packaging by adding pictures of Negativland opposite the picture of U2.
But despite all his work, Hwang said he doesn't stand to make any money from the auction. He said he intends to donate all profits from the sale to Downhill Battle, a nonprofit organization working to "support participatory culture and build a fairer music industry."
The auction will run until March 14. So far, bidding has reached $261 dollars, about half the going price of the original eBay auction.
Apple has yet to contact Hwang about the auction, and didn't respond to requests for comment.
