What would said items be?
The primary examples would be (1) things I don't own yet, but plan to obtain ownership right to that I can then give to the buyer (a classic example: that person mentioned above who is selling the next VMK card that isn't out yet. Perfectly legal); and (2) CDs, books and licenses for software that I license, but do not own.
Are you saying that it's legal to sell a car that you parents bought for you? Even though the title has their name on it and they own it? So, cite me a case, a statute, a regulation that says doing this is legal, and I'll admit that you are right.
That is a fantastic example, because I did, in fact, do precisely this. My parents bought my first car. I sold it when I was 19. I advertised it for sale. I took it out for test drives. I parked it on the street with my phone number on a "for sale" sign. I even wrote up a bill of sale for it. When it came time to convey the title, a week after I cashed the deposit check, when the buyer rolled up with a cashier's check for the rest, I obtained clean title by getting my dad to sign it over. I don't know what case, precisely, I would have relied upon in doing so, but such rules of law have been part of Anglo-American jurisprudence for several centuries.
As for the specifics of "selling" rights to digital goods that you do not own, a good starting point would be National Car Rental Sys., Inc. v. Computer Associates Int'l Inc., 991 F.2d 426, 433 (8th Cir.), cert. denied, 126 L. Ed. 2d 136, 114 S. Ct. 176 (1993), which says it is not illegal to make even commercial use of software for benefit of a third party when original terms of use (license) provided that only original licensee could use license to process it own data. You don't own the software. Yet you can sell the use of it to another party without fear of violating the law.
There was another interesting case, not litigated in court, where one George Hotelling publicly sold his iTunes song to one Keith Elder. Although Apple's terms of use did not permit transferring downloaded songs, Apple begrudgingly admitted was not against the law to transfer the downloaded file, even though the license did not permit it, and the song did not belong to the seller. There is a long line of cases that hold that a person who possesses a lawful copy of a copyrighted work is allowed to sell it without the permission of the copyright owner. If you really want to read about it, try starting with a google search for "first sale doctrine" or start with wikipedia's entry for the same:
http://en.wikipedia.org/wiki/First-sale_doctrine
So, there, I've cited you a case that is good law, pretty well close to being right on point. Your turn.
