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They're creating a copy of a work and then selling that copy back to you. That's the central issue that puts them in violation of copyright, no matter how it gets dressed-up.
You'll note that the judge made a special note in the MP3.com case that there was no debate about the commercial nature of their operation. When you buy a personal copy of something there are all sorts of things you, personally, can do with it, but the only people allowed to make money off a copyrighted work are the copyright holders.
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