Such concerns are at the heart of the lawsuit Second Hand Tunes has filed against the city in district court. Represented by the firm of Horowitz and Weinstein, the chain is basing its suit on First and Fourth Amendment issues. "If you look at the other used items listed in the statute, none of them are items of speech and expression, as CDs and DVDs are," says the chain's attorney, Paul Horowitz. "Regulating items of speech and expression is a violation of First Amendment rights." As Second Hand Tunes owner Johnny Balmer puts it, "The city of Chicago has no right to document my customers' listening habits."

....The existence of many independent CD stores is already precarious — more than three dozen in the Chicago area have gone out of business in the last decade. Unlike large chains, independent stores can't buy direct from manufacturers and must pay between $1.50 and $3 more per disc to get them from middlemen. They certainly can't sell new releases as loss leaders at $9.99, as Best Buy does. Balmer says he can price new CDs no higher than $14.99 to $15.99 if he wants to stay competitive with national chain stores, for a profit margin of roughly 20 percent.

Used CDs offer a similar profit per disc (about $3 to $4), but cost considerably less to stock — the average profit margin on a used disc is 50 to 60 percent. Besides, Best Buy and Borders don't carry them at any price. Many independent shops rely heavily on used CDs to stay in business: Dead Wax in North Center is a 100 percent used operation, Second Hand Tunes does 95 percent of its business in used items, and the Record Emporium sells about half-and-half. Another case of the law of unintended consequences - I'm sure it was not the intent of the framers of the city ordinance to shut down used CD/record stores, but that may be the result.

Another, unmentioned element in this dynamic is the role that promo copies of CDs play in the income of label, promo/PR, and radio employees, as well as writers, many of whom routinely trade in sealed promo copies for cash. Where do you think those brand new, unopened promos come from?