US Judge rules against 2nd-hand digital music sales

[HarryT]

A company which allowed customers to resell their digital music "second hand" breached copyright, a US judge has ruled.

ReDigi billed itself as the first legal way to resell music bought online - but soon provoked the ire of record labels.

It was sued by Capitol Records in January 2012, and on Monday a New York judge said ReDigi was making unauthorised copies of music.

The ruling could have broad implications for digital reselling.

...

In the digital world, where duplication is much easier, the first sale doctrine was not appropriate, the judge said.

"It is simply impossible that the same 'material object' can be transferred over the internet," he wrote in his ruling.

...

ReDigi's software is designed to prevent sellers from reinstalling a sold song to their computer, and offers users the chance to check their libraries for illegal music.

But the judge said: "It is beside the point that the original phonorecord no longer exists. It matters only that a new phonorecord has been created."

Full story at:

http://www.bbc.co.uk/news/technology-22000668

[caleb72]

Hmm interesting - thanks HarryT. Looks like years of fun ahead for all of us while we navigate this complex digital world.

[Ninjalawyer]

Very interesting. Since every "transfer" of a computer file is actually the making of a copy, it seems as though that would be an impermissible reproduction under U.S. copyright law. This case would also seem to close the door in the U.S. on first sale doctrine for digital goods fairly completely.

[usuallee]

First of all, I literally LOLed at the judge calling mp3 files "phonorecords" Hilarious! But even though that word touches off "old, out-of-touch, clueless judge" alarm bells, the rationale behind the decision seemed pretty sound.

I'd love to be able to resell digital content I no longer want, and maybe get "used" stuff at a discount, especially ebooks, since I'm not much of a re-reader. Music is different in that interest in a certain album could be rekindled at any time, therefore I wouldn't have much interest in selling any of my mp3 collection. Personal desires aside, it's tough to argue with the judge's decision in terms of the potential for abuse in reselling digital content.

With Redigi there just seem to be too many loopholes that any unscrupulous, reasonably savvy computer user could probably take advantage of (I'm basing that on guesswork based on the description in the article). Then again, anyone can rip all their CDs and then sell them, so what's the difference really?

I'm still hoping to sell back my Kindle books at some point, but I'm not holding my breath.

[Ninjalawyer]

Originally Posted by usuallee

First of all, I literally LOLed at the judge calling mp3 files "phonorecords" Hilarious! But even though that word touches off "old, out-of-touch, clueless judge" alarm bells, the rationale behind the decision seemed pretty sound.

I'd love to be able to resell digital content I no longer want, and maybe get "used" stuff at a discount, especially ebooks, since I'm not much of a re-reader. Music is different in that interest in a certain album could be rekindled at any time, therefore I wouldn't have much interest in selling any of my mp3 collection. Personal desires aside, it's tough to argue with the judge's decision in terms of the potential for abuse in reselling digital content.

With Redigi there just seem to be too many loopholes that any unscrupulous, reasonably savvy computer user could probably take advantage of (I'm basing that on guesswork based on the description in the article). Then again, anyone can rip all their CDs and then sell them, so what's the difference really?

I'm still hoping to sell back my Kindle books at some point, but I'm not holding my breath.

It's too bad really though. Being able to resell digital goods makes them more valuable in the eyes of the consumer, so a benefit to producers who want to set the price as high as they can. and it's unlikely anyone is going to bother jumping through the hoops necessary to keep a copy of a song they resell since it would have been easy enough to pirate it in the first place.

If anyone is interested, Techdirt has additional commentary and the full court decision here.

[HarryT]

Originally Posted by Ninjalawyer

Very interesting. Since every "transfer" of a computer file is actually the making of a copy, it seems as though that would be an impermissible reproduction under U.S. copyright law.

Very true. Hence:

... a New York judge said ReDigi was making unauthorised copies of music.

"Unauthorised" being the important word. The copies you make in the downloading and normal use of the product are authorised copies.

[GlenBarrington]

Intellectual property rights is a difficult issue for our culture. You've got to find a way to compensate the producer of intellectual property or there will be no incentive to produce it.

But the idea of copyrighting an idea has been an anethema to us. Books, music, photography, movies are all created with ideas as the raw material, so their status as property gets blurry. But we have always considered them 'property'. When you add modern digital technology into the mix with it's EASY capability for copying stuff created from that intellectual raw material, it is obvious that problems will arise.

Like most conflicts, the solutions that will likely best suit humanity in the long run will probably least satisfy both the producers and consumers of this stuff. Both will likely see the resolution as the end of the world! Whether you are a producer or a consumer, be prepared to be outraged!

[HarryT]

Originally Posted by GlenBarrington

But the idea of copyrighting an idea has been an anethema to us.

Which is precisely the reason that "an idea" cannot be copyrighted. You can only copyright a concrete expression of that idea, whether it be in the form of a rap song, a symphony, an oil painting, or a book. It doesn't prevent anybody else from having the same idea, as long as they express it in a different form to yours.

[usuallee]

Originally Posted by Ninjalawyer

It's too bad really though. Being able to resell digital goods makes them more valuable in the eyes of the consumer, so a benefit to producers who want to set the price as high as they can. and it's unlikely anyone is going to bother jumping through the hoops necessary to keep a copy of a song they resell since it would have been easy enough to pirate it in the first place.

If anyone is interested, Techdirt has additional commentary and the full court decision here.

Both of your points are excellent. I never thought about the ability to resell being potentially beneficial to producers in that thoeretically consumers might pay more for stuff they can resell. Also, you're right, if Redigi really forces one to prove ownership of mp3 files, then only non-pirates would be using the service in the first place.

My initial reaction was to agree with the decision in regards to Redigi specifically, but the more I think about it, if this is going to set a bad precedent to the effect that first sale doctrine is out the window for all digital products, then I'm not in favor if it.

[calvin-c]

Originally Posted by HarryT

Which is precisely the reason that "an idea" cannot be copyrighted. You can only copyright a concrete expression of that idea, whether it be in the form of a rap song, a symphony, an oil painting, or a book. It doesn't prevent anybody else from having the same idea, as long as they express it in a different form to yours.

Very true. Patents are for ideas, copyrights for expressions. One thing I'd look for is this ruling to be either overturned or judged to apply only to the method used by ReDigi. I can't see it being generally accepted-but I could be wrong. More & more I see the legal system selling out to corporate greed. Potential criminal behavior has only been illegal in the US when corporations have been allowed to make the laws-or court rulings. In all other cases criminal behavior must be proven.

[HarryT]

Originally Posted by calvin-c

Very true. Patents are for ideas, copyrights for expressions. One thing I'd look for is this ruling to be either overturned or judged to apply only to the method used by ReDigi. I can't see it being generally accepted-but I could be wrong. More & more I see the legal system selling out to corporate greed. Potential criminal behavior has only been illegal in the US when corporations have been allowed to make the laws-or court rulings. In all other cases criminal behavior must be proven.

This particular ruling has nothing to do with "potential criminal behaviour" (by which I'd guess you mean the issue of someone selling something while keeping a copy for themselves?). The judge ruled that ReDigi ARE committing copyright infringement by creating unauthorised copies of the work.

[taustin]

Originally Posted by Ninjalawyer

Very interesting. Since every "transfer" of a computer file is actually the making of a copy, it seems as though that would be an impermissible reproduction under U.S. copyright law. This case would also seem to close the door in the U.S. on first sale doctrine for digital goods fairly completely.

In that judge's courtroom, perhaps. This ruling is irrelevant to any case other than this one. It will eventually make its way to the Supreme Court, though.

[Sydney's Mom]

Originally Posted by HarryT

Which is precisely the reason that "an idea" cannot be copyrighted. You can only copyright a concrete expression of that idea, whether it be in the form of a rap song, a symphony, an oil painting, or a book. It doesn't prevent anybody else from having the same idea, as long as they express it in a different form to yours.

But you can patent ideas. Several years ago, before recent changes in patent law, you could patent tax strategies. Several tax firms or patent trolls patented some not new tax strategies, and sent letters saying if you use these with your clients, you have to pay us. Congress stopped this, and you can no longer patent tax strategies, but they did not invalidate those that had been issued. I think most people are just ignoring it - you would get in more trouble for not using the strategies for your clients. Everyone has a right to structure their finances to reduce their tax liaiblity. I don't think a court would be very sympathetic (assuming they could understand it in the first place.)

[HarryT]

Certainly you can patent ideas, provided they are something concrete, such as a device or a process, but this case was about copyright law, which is something entirely different. There's a very good reason why a patent only lasts a short time!

[Jozawun]

Originally Posted by usuallee

First of all, I literally LOLed at the judge calling mp3 files "phonorecords" Hilarious! But even though that word touches off "old, out-of-touch, clueless judge" alarm bells, the rationale behind the decision seemed pretty sound.

The word "phonorecords" comes from the Act, not the Judge.