U2 v. Negativland v. Apple v. some poor schmoe

Wired has a funny story today about how Apple has forced eBay to remove someone's Negativland vs. U2 iPod from auction. He's now offering it for sale on his own Web site.

For those of you who don't know, U2's label, Island Records sued Negativland and their former label, SST, in 1991 for copyright infringement. At issue was a song they recorded using samples of U2's music along with an irate Casey Kasem throwing an expletive laced temper tantrum. Island also asserted that the artwork was confusing because it had a picture of a U2 airplane and the words U2 Negativland on the cover.

The case settled, but then SST, owned by Black Flag guitarist Greg Ginn, sued Negativland to recover the costs of the settlement.

The whole mess is wonderfully preserved in Fair Use: The Story of the Letter U and the Numeral 2. (Incidentally, it was this lovely story that inspired me to study intellectual property in law school. This makes me just a little different from all the other kids who came here because of Napster). Negativland is now a champion of fair and rational intellectual property laws.

Which brings us back to the Wired article. In honor of the Negativland saga, this guy loaded a U2 Special Edition iPod with a bunch of Negativland music, altered the artwork on the packaging, and offered it up for sale on eBay. Apple apparently requested that eBay remove the item from auction.

The problem is, Apple doesn't really have any intellectual property rights in dispute here. If they had requested eBay to remove the item under the auspices of the DMCA (section 512, which saves ISPs and others from contributory infringement liability if they comply by removing the offending material)--Apple could be liable to him for a bad faith use of the ISP safe harbor provision. It's possible because the likelihood of him suing them is low, and the penalty is also a mere pittance to Apple. If they didn't use 512, it means eBay just removed the stuff because they felt like it. Not a good business practice if this guy gets much publicity.