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ReDigi Defends Used Digital Music Market
NewYorkCountryLawyer writes "ReDigi has fired back, opposing Capitol Records's motion for a preliminary injunction. In his opposition declaration, ReDigi's CTO Larry Rudolph explains in detail (PDF) how the technology employed by ReDigi's used digital music marketplace effects transfer of a music file without copying, but by modifying the record locator in an 'atomic transaction,' and how it verifies that only a single instance of a unique file can enter the ReDigi cloud system. ReDigi's opposition papers also point out plaintiff's own admissions that mp3 files are not 'material objects' or 'phonorecords' under the Copyright Act, and therefore not subject to the Copyright Act's distribution right, and defend ReDigi's used digital music marketplace and cloud storage system (PDF) on a number of grounds, including the First Sale exception to the distribution right applicable to a 'particular' copy, the Essential Step exception to the distribution right applicable to a copy essential to the running of a computer program, and Fair Use space shifting."
For some bullshit I doubt anyone wants, seriously you can buy the best the world has to offer for 99 cents a track, what kind of horseshit DRM system to I have to infect windows with and dance around just to save what? 25 fucking cents in the end?
"Then what gives them the right to tell us we can't resell it?"
The government does.
Since 2005 people have been asking me all kinds of questions about what you can do with your digital music after purchasing it. Now along comes a case where I'm actually litigating, and the court will be deciding, those types of issues, and the comments seem to be all off topic. Oh well.
Ray Beckerman +5 Insightful
Every time products get deliberately borked in order to sell non-borked versions at a higher price, a part of me gets very angry. I can see the commercial sense in it, but it does not stop the anger.
Would you like a slice of toast?
So? If I started a bookstore with a single copy of each book and printed a new copy for each customer on demand I'd still be bound by first sale wouldn't I? Who cares when the copy is made.
Doesn't matter--they have the rights to copy and they're selling that copy. Therefore, under first sale doctrine, you should have the right to resell that copy. The fact that your copy was made on-demand should be completely irrelevant. If it were an on-demand printing press or CD burner, you'd have the right to resell the book or (physical) CD, even though it was generated on-the-spot. Why would it be different for a file?
In fact, a DVD or BluRay is simply a set of files that have been copied to an intermediate storage medium. What possible reason can you offer for suggesting that the rules are different simply because the storage mechanism is different?
What possible reason can you offer for suggesting that the rules are different simply because the storage mechanism is different?
It's the same reason that pro-piracy advocates use: IP goods are not the same as physical goods. If IP can't be stolen (it's merely being copied), then there's no way to enforce sale of a "used" IP either. There's absolutely no way to enforce that when you sell your copy of the IP, that you are selling the your original copy and not merely a copy of your copy.
All the pro-piracy advocates say that IP shouldn't try to operate using an artificial-scarcity business model to make it seem like a physical good. Well, without (artificial) scarcity, there is also no logically-consistent argument for sale of "used" IP either.
Pick one: artifical, government-enforced/DRM-managed scarcity + first-sale doctrine, or IP-should-be-free + no used sales. Those are your logically consistent options.
This is not explicitly true. Many products are routinely sold that can be obtained for free, given the labor of obtaining is a sufficiently arduous task. The person is really buying the convenience of a harvested product.
Take for instance, oxygen, or nitrogen gas. (Especially nitrogen). You gan collect copious quantities of it for free. However, the task of harvesting and refining it is nontrivial, and possibly expensive in both time and invested infrastructure. As such, somebody that basically just pumps and superchills ordinary air, and in so doing fractionally distills out the nitrogen and bottles it (the nitrogen itself is still free), they can sell it as long as there is a demand.
Another example is dirt. You can scoop up dirt for free too, but people still buy it routinely.
See also: manure, compost, etc.
The value of the files, which can be easily sourced, is in the increased convenience of the service, and any implied goods accompanying that service, such as legal indemnification for posession. (Eg, you won't get sued by the riaa for downloading it.)
This value is set by what peope are willing to pay for it. Profitability can only occur if the price people are willing to pay is greater than the costs of offering it for sale.
You could argue that it could never be profitable... that's a reasonable argument. But you can't argue that it can't be sold. (One can sell at a loss.)
The real problem here is that this operation sets real limits on what the ACTUAL market value for the recording industry's digital products really are, instead of the artifically insisted upon values presented in court during infringement cases, and also the cumulative effects that such a service would produce.
Specifically, the recording industry relies on continually reselling copy from its back catalog. (60s and 70s classic rock, 80s music, 90s music, etc...) there is a demand for this because the old storage mediums break down with age, and require replacement. A digital resale locker like redigi permits the new sales of theroetically unaging copies (mp3s don't wear out....) to change hands potentially unlimited numbers of times. Coupled with continued first hand sales, an increasing supply of second hand files can theoretically end up in redigi's possession, saturating the market.
This will greatly impact the ability of the riaa and member labels to continue to snack on replacement/redundant copy sales, which accounts for the vast majority of their revinue stream.
That's why they hate redigi, and also why we should embrace redigi.
Sure you can. It's actually quite easy. You're missing a fairly fundamental concept, which is this: what is necessary to prevent playback of copies is not required to merely prevent sale of those copies. To do the former, it must be impossible to get a decryption key without proving that you are the current owner. This is fundamentally impossible to do in an unbreakable way, and the harder you try, the worse the customer experience is. By contrast, to do the latter, you need only the ability to uniquely identify each sold copy of a file. This requires nothing more than a guarantee from the companies that sell the original tracks that there will never be two identical copies of the track, plus a verifiable, ideally signed marker of some sort to determine authenticity.
In other words, to support resale of commercially-sold tracks, you need only take advantage of the watermarks that most or all of those services put in the tracks to begin with. Tracks are usually sold with additional info in the track's metadata that ties it to a particular user's account so that if it gets pirated, it can be traced back to the person who illegally distributed it.
This means that every digital download is unique and trivially verifiable as authentic or inauthentic without the need for actual DRM that would limit your ability to play the file. Thus, all that is necessary is a central database that every reseller talks to, in which the current ownership of every track that gets sold is tracked based on which account purchased it originally.
At least I'm assuming this is how they're doing it. It's certainly the most straightforward and obvious way to do it.
What this does not do, of course, is prevent you from making a copy before you sell the track. However, resale of physical CDs and DVDs has exactly the same problem, making this argument largely irrelevant as far as drawing a legal distinction between the two types of resale.
Check out my sci-fi/humor trilogy at PatriotsBooks.
All the pro-piracy advocates say that IP shouldn't try to operate using an artificial-scarcity business model to make it seem like a physical good. Well, without (artificial) scarcity, there is also no logically-consistent argument for sale of "used" IP either.
Yes, but it's the proper fallback position when your primary argument against artificial scarcity falls on deaf ears. You made the case yourself. IF artificial, government-enforced, DRM-managed scarcity exists (and it does), THEN I assert my right of first sale. Whether or not I agree that the initial condition *should* be true doesn't negate the consequence of it being true.
And for what it's worth, I don't necessarily disagree with the idea of IP as actual property, though for disambiguation it would be useful if we had a better term for IP that didn't actually include the word property.
https://www.eff.org/https-everywhere
Such things tend to be pretty useless because they're exactly the sort of thing that lossy compression algorithms strip out to save space -- and if every anyone invented a way to insert one that existing compression algorithms didn't remove, the algorithms people would be very interested in it so that they could improve the algorithm (which would then go back to stripping it out).
Yes, but it's the proper fallback position when your primary argument against artificial scarcity falls on deaf ears. You made the case yourself. IF artificial, government-enforced, DRM-managed scarcity exists (and it does), THEN I assert my right of first sale. Whether or not I agree that the initial condition *should* be true doesn't negate the consequence of it being true.
Alright, I agree. Try getting a pro-piracy advocate to admit to this though, and I'll give you a cookie. They want to be able to freely copy IP to their local drive, and then sell the original used and keep their copy. That's obviously the best of both worlds for them (IP-is-free for copying, IP-is-property for selling), but it's terribly inconsistent in terms of philosophy.
This addresses a problem with media-free content in general. How do you establish that you have the right to the files you have? What's to keep the government or Apple coming in and claiming all of a sudden that all of your stuff is pirated?
The "ownership" problem exists regardless of whether or not anyone wants to transfer that ownership.
Physical media is a nice token of exchange and proof of ownership in that regard.
A Pirate and a Puritan look the same on a balance sheet.
Pick one: artifical, government-enforced/DRM-managed scarcity + first-sale doctrine, or IP-should-be-free + no used sales. Those are your logically consistent options.
Ignoring the fact that copyright is a wholly artificial construct anyway, and be written to behave however the hell people like, regardless of logical consistency, if we abandoned copyright, why would anyone care about selling used copies of creative works with regard to the works contained within?
For example, suppose that it was legal to make copies of the Mona Lisa. (Which it is, but we'll set that aside for now) Why would anyone pay for a copy?
Well, they might pay for the convenience of getting an already-made copy, rather than having to make their own. But that's no different than the usual price difference between ready-made things and doing it yourself. The work isn't the source of value here.
They might pay for a particular copy due to some special thing about the tangible object, but that's unrelated to the work itself, which could be reproduced flawlessly in numerous copies. The original painted by DaVinci is likely worth something due to its provenance. Even if you had an atom-by-atom identical copy, the original would be more valuable for historical reasons. Likewise a copy that had been given to you by a friend or relative might mean more to you than a generic identical copy. Again, the work isn't where the value is coming from.
So the used market would probably dry up if we abolished copyright, but it would be of little importance, for an inherent property of information (such as creative works) is that it is sharable. As Jefferson noted (in reference to inventions, but it applies here), sharing knowledge is like using one person's fire to light another's -- in the end, both people have fire, and no one's fire is lessened by doing it. Copyright operates, among other ways, by trying to reign this in for a limited time. But if we abolished this check on the natural tendency of information to become widespread, you'd see sharing all over the place that was functionally identical to or superior to the used market, except that there wouldn't be so much money involved.
-- This and all my posts are in the public domain. I am a lawyer. I am not your lawyer, and this is not legal advice.
The owner had a good idea and the RIAA got jealous.
Yeah, one of the funniest things in the record company's papers is the statement that
ReDigi promises that its âoeVerification Engineâ analyzes each file to ensure that it was âoelegally downloadedâ by the user in the first instance and thus âoeeligible for sale.â Given the widespread piracy of sound recordings on the Internet â" an issue with which we have been struggling for more than a decade â" it is questionable whether ReDigi can effectively determine whether files were lawfully obtained in the first instance.
To this I responded:
I.e., because plaintiff is inept and has been wasting its money on frivolous litigation instead of the development of useful technology which protects copyright, therefore it is âoequestionableâ whether ReDigi can have accomplished what plaintiff never could. Well it may be âoequestionableâ to Mr. McMullan, but it is the fact. And he offers not a shred of evidence to the contrary.
Ray Beckerman +5 Insightful