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Old 11-18-2011, 11:08 AM   #1
Rich_D
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Interesting copyright case - Digital music resales

A company buys and resells digital music files. Of course the RIAA wants them to stop.

The outcome could have an impact on ebook sharing/reselling.

http://news.cnet.com/8301-31001_3-57...sed-downloads/
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Old 11-18-2011, 11:12 AM   #2
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I would imagine that the major issue here is that there is no way for the seller to prove that he is not keeping his own duplicate copy, which would be an infringement issue.
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Old 11-18-2011, 11:21 AM   #3
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I would imagine that the major issue here is that there is no way for the seller to prove that he is not keeping his own duplicate copy, which would be an infringement issue.
Can the RIAA prove the seller is keeping a duplicate copy?

Genuine question: On whom does the burden of proof fall in a case like this? Or is it a moot point because the RIAA will come up with their usual 'you licensed it, you didn't purchase it' defence?
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Old 11-18-2011, 11:26 AM   #4
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I imagine that lots of issues will arise (including the license v purchase), but the burden of proof in civil infringement cases is NOT "beyond a resaonable doubt." It is, rather "a preponderance of the evidence."

This means that the plaintiff only has to prove that it is 51% likely that there was an infringement (IE that the defendant maintained or has a copy of what he sold stashed somewhere).

ETA: I've not read ANYTHING about this case, I'm just taking shots in the dark here. Legally educated guesses, but just guesses nonetheless.

Last edited by astrangerhere; 11-18-2011 at 11:29 AM.
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Old 11-18-2011, 11:57 AM   #5
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I would imagine that the major issue here is that there is no way for the seller to prove that he is not keeping his own duplicate copy, which would be an infringement issue.
Just as major an issue is whether we own the material that is being sold in a secondary market. For physical media, the first-sale doctrine has been upheld. But there is a compelling argument that we don't buy the books, we buy a license to put the books on our electronic devices.

Most of us would recognize that we can't buy a single Season Pass to Six Flags and then resell it throughout the community each day based on who needs it.

I look forward to the courts clarifying whether we actually own ebooks and mp3 songs.
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Old 11-18-2011, 12:00 PM   #6
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Can the RIAA prove the seller is keeping a duplicate copy?

Genuine question: On whom does the burden of proof fall in a case like this? Or is it a moot point because the RIAA will come up with their usual 'you licensed it, you didn't purchase it' defence?
I think that is what will have to be decided by the courts first. If it turns out that we did buy them, then the issue of retaining copies can be raised. If it ends up that we licensed it, then resale is illegal either way.
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Old 11-18-2011, 12:38 PM   #7
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Originally Posted by howyoudoin View Post
Genuine question: On whom does the burden of proof fall in a case like this? Or is it a moot point because the RIAA will come up with their usual 'you licensed it, you didn't purchase it' defence?
Probably the license/purchase defense which may be contained in the super-fine print of the service agreement/ToS/EULA that the original licensee had to agree to.
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Old 11-18-2011, 05:21 PM   #8
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Originally Posted by howyoudoin View Post
Can the RIAA prove the seller is keeping a duplicate copy?

Genuine question: On whom does the burden of proof fall in a case like this? Or is it a moot point because the RIAA will come up with their usual 'you licensed it, you didn't purchase it' defence?
If they can prove they have bought the original file once only and yet sold multiple copies of the file then it is pretty clear they are keeping a copy of it somewhere.

Having said that, as has been mentioned by others, I'm sure this would be only one issue raised and probably far down the chain of relevant issues that need to be resolved.
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Old 11-18-2011, 07:57 PM   #9
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This is why I worry about the cd dying and not being replaced. When that happens, I have a feeling that music companies will stop selling DRM free music and try to move to only a streaming model.

I mean, the ease of ripping a cd to an mp3 is pretty much why they had to make the switch. In the early days of the internet they tried selling only DRMed music.

Then again, it's not like most new music is worth buying so probably a moot point.
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Old 11-20-2011, 02:26 PM   #10
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Just as major an issue is whether we own the material that is being sold in a secondary market. For physical media, the first-sale doctrine has been upheld. But there is a compelling argument that we don't buy the books, we buy a license to put the books on our electronic devices.

Most of us would recognize that we can't buy a single Season Pass to Six Flags and then resell it throughout the community each day based on who needs it.

I look forward to the courts clarifying whether we actually own ebooks and mp3 songs.
There is case law both ways. In Softman v. Adobe, in California, the court ruled that if you pay a single fee and get indefinite use, it's a sale, not a license, and the first sale doctine therefore applies because copyrights are governed by copyright law, not contract law. Other states have rules such licensing restrictions enforceable. It will be years before this gets hammered out, and it may very by state when it is.
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Old 11-20-2011, 02:28 PM   #11
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Probably the license/purchase defense which may be contained in the super-fine print of the service agreement/ToS/EULA that the original licensee had to agree to.
Only if the license is enforceable. There are several ways to defend against such claims, such as unconscionable terms, inability to negotiate individual terms, or even a simple claim that copyrights are governed by copyright law, not contract law.
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Old 11-22-2011, 03:00 PM   #12
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..., I have a feeling that music companies will stop selling DRM free music and try to move to only a streaming model.
I prefer this anyway. I stopped downloading music files when Spotify came along and made it possible for me to listen to, on demand, pretty much any song I want to for $10/month. I wish ebooks would adopt this model. No more worrying about DRM, or storing my files, or backing them up, etc.
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Old 11-22-2011, 03:42 PM   #13
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This is why I worry about the cd dying and not being replaced. When that happens, I have a feeling that music companies will stop selling DRM free music and try to move to only a streaming model.

I mean, the ease of ripping a cd to an mp3 is pretty much why they had to make the switch. In the early days of the internet they tried selling only DRMed music.

Then again, it's not like most new music is worth buying so probably a moot point.
I hope not. I'm not huge into music so I buy random CDs or singles here and there.
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Old 11-24-2011, 10:42 AM   #14
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I prefer this anyway. I stopped downloading music files when Spotify came along and made it possible for me to listen to, on demand, pretty much any song I want to for $10/month. I wish ebooks would adopt this model. No more worrying about DRM, or storing my files, or backing them up, etc.
Downside to that is spotify require you open a facebook account to use them. I don't want to use or open a facebook account

Streaming and buying should be able to co-exist though, both options meet the needs of different people. Just a shame spotify don't let you create an account directly with them if you don't want all the social extras or facebook.

Last edited by JoeD; 11-24-2011 at 10:45 AM.
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