Google Asks Court Not To Enjoin ReDigi

NewYorkCountryLawyer writes "Google has sought leave to submit an amicus curiae brief against Capitol Records' preliminary injunction motion in Capitol Records v. ReDigi. In their letter seeking pre-motion conference or permission to file (PDF) Google argued that '[t]he continued vitality of the cloud computing industry — which constituted an estimated 41 billion dollar global market in 2010 — depends in large part on a few key legal principles that the preliminary injunction motion implicates.' Among them, Google argued, is the fact that mp3 files either are not 'material objects' and therefore not subject to the distribution right articulated in 17 USC 106(3) for 'copies and phonorecords,' or they are material objects and therefore subject to the 'first sale' exception to the distribution right articulated in 17 USC 109, but they can't be — as Capitol Records contends — material objects under one and not the other."

Comments

Either one or the other

[cmdr_klarg]

AKA "You can't have your cake and eat it too."

Re:Either one or the other

[Spad]

In other news, the RIAA have lobbied to introduce new legislation today requiring that all cakes are sold with a second, identical cake to permit posession and consumption without additional cost to an already struggling entertainment industry.

Re:Either one or the other

[HungryMonkey]

I thought the original phrase was "You can't eat your cake and have it too"

The original phrase was "wolde you bothe eate your cake, and have your cake?" (“A dialogue Conteinyng the Nomber in Effect of All the Prouerbes in the Englishe Tongue“ , John Heywood, 1546)

Re:Either one or the other

[agentgonzo]

I prefer the Italian: avere la botte piena e la moglie ubriaca ("to have the barrel full and the wife drunk")

Re:Either one or the other

[v1]

AKA "You can't have your cake and eat it too."

exactly what I was thinking. They want to have your cake, they want to have my cake, and they want to eat them both. I bet their lawyers are running around in tight circles right now trying to figure out how to defend their favorable positions in both interpretations of the law in the same court case. I hope their heads EXPLODE.

Re:Either one or the other

[Clever7Devil]

Of course, us REAL geeks already know the truth: The cake is a lie.

Poor Supporting Argument

[mwfischer]

" Google argued that '[t]he continued vitality of the cloud computing industry—which constituted an estimated $41 billion dollar global market in 2010"

We certainly can't let the law get in way of making money.

Re:Poor Supporting Argument

[Maximum Prophet]

Check out just about any court decision involving US treaties with Native Americans. Money talk almost always wins. Doesn't get it's way 100%, but close enough.

Re:Poor Supporting Argument

[Joehonkie]

"We certainly can't let the law get in way of making money." That's been the RIAA's argument so far...

Re:Poor Supporting Argument

[Anonymous Coward]

Well the money is certainly a good reason for Google to be involved, and good for the court to know it's not just considering an academic issue.

On the other hand, Google's actual argument doesn't depend on money. And they are right in a very obvious sense. When you need to upgrade your DVD to a bluray, they tell you " you only own the media, you need to buy a new one". When you complain about how you shouldn't have to pay $25 for a DVD that costs less than a dollar to manufacture, they tell you " the price of the media isn't relevant, your paying for a license." they've been playing all kinds of games like that. It's always " heads I win, tails you lose".

Re:Poor Supporting Argument

[m.ducharme]

It's about more than just money --- it's a policy argument. the argument is that choking off such a large market would have much greater effects than just reducing the revenue streams of Google, Amazon and others. Employees would be laid off, businesses that rely on the services would suffer (including small sole proprietorships), the economy would probably be measurably affected. Courts generally have some obligation to consider these matters when they render judgments.

Re:Poor Supporting Argument

[eggstasy]

Well, would you rather live in a prosperous country where people are well-paid and jobs are plentiful?
Not sure about the RIAA, but Google makes more money than half the MPAA put together. (I did the math a while ago).
To be quite honest I don't know why Google doesn't simply buy them out and dump the "long tail" on Youtube.

Re:I thought Google was evil now?

[Tsingi]

But this appears to be a good thing logically.

Help, I'm so confused, do I hate or like Google today?

Today you like them. Tomorrow is a new day.

Re:Eh

[sosume]

google asks the court to decide wether:
- files (eg mp3) are material objects which can be resold etc or:
- files are not material and therefore the laws regarding those are invalid.

Can the courts decide A = !A

[Maximum Prophet]

Real lawyers can clarify, but AFAIK, two separate courts in separate decisions can decide that A is true, and that A is not true.

Is there any law or principle that the "system" has to resolve logical errors like this?

Re:Can the courts decide A = !A

[orgelspieler]

Ever hear of the guy that successfully defended a small claims case by arguing all three of the following simultaneously?

1) I never borrowed my neighbor's lawnmower.

2) My neighbor's lawnmower isn't broken.

3) My neighbor's lawnmower was already broken when I borrowed it.

Only one of the three arguments needed to be true for the neighbor to lose the case. How the guy didn't get charged with perjury is beyond me.

Phonorecords duality !

[advid.net]

but they can't be material objects under one and not the other

Or could they ?

We already have demonstrated wave-particle duality at macroscopic scale. We could also understand that phonorecords are indeed dual objects, both material and non-material, depending on the way we consider them.

I foresee a new law of physics where those objects tend to please their copyright owners and thus switch from one concept to another accordingly.

Re:Phonorecords duality !

[bondsbw]

Ah, I understand now. So each individual copy of the mp3 is dually material and non-material, until observed, at which time it becomes $80,000 per copy.

Reconciling quantum physics with general relativity is much easier than making sense of the RIAA.

Re:Phonorecords duality !

[robot256]

This comment does a very nice job of summarizing Google's argument. Basically, they are saying that since only material reproductions are covered under distribution rights, the only way you can control the distribution of mp3 files is if they are material reproductions. However, all material reproductions are also covered by the right of resale, so in that case ReDigi is a lawful reseller. If, on the other hand, mp3 files are not material reproductions and not subject to the right of resale, then they are not subject to the right of exclusive production either. Approached logically, the case falls apart no matter what stance you take. The only way for them to prevail is if the judge decides to apply half the law and ignore the other half.

Re:Phonorecords duality !

[wierd_w]

This argument, while factually true, is pedantic and broken. It also implies that the riaa is willfully selling unusable goods.

Take an mp3 player. A cheap one, or an ipod. One that doesn't have removable flash storage. To get the mp3 onto the drvice, the "buyer" must copy it with itunes or with a file manager. A copy is made.

Additionally, an mp3 on external storage cannot be directly manipulated/processed. It has to be copied into ram memory. This is true on all noteworthy computing architectures. This is another copy.

To play it on a computer, it gets copied into ram memory, however temporarily. Still, a copy must be made in order to use it.

If they are selling a license to use the mp3, then that must defacto imply a limited right to copy, or else you are violating the implied warantee of merchantability by selling a product that cannot be used for the intended purpose, or are breaking the latches doctrine by engaging in a willfully onesided and abusive contract.

Re:I thought Google was evil now?

[kiwimate]

I wouldn't say I like or dislike them (although they seem to be trying to make themselves pretty unlikable these days). But I have always been wary of Google because they gather so much data.

So I just don't use them.

And no, it's not exactly a good thing logically. It's twisting words (i.e. lawyers doing lawyer things and picking pedantic holes in texts to get around the clear intention of the law).

What'll happen if this somehow gets through and they're not careful is the recording industry will say "fine, you be jerks, we'll be jerks back. These are now computer programs and subject to paragraph* 109 (b)(4). Have a nice day".

* Why on earth can't I use the paragraph symbol?

Circuit Split

[langelgjm]

You're probably thinking of a circuit split. These can be resolved if the Supreme Court decides to take a case that involves a circuit split; otherwise, lower courts would have to abide by the authority of their particular circuit.

Sure they can be both

[elrous0]

And the media industry has millions in campaign donations to MAKE them both.

Finally

[equex]

At last, a big player plays the doctrine of first sale-card. This just got interesting. Google is neither pure good nor evil, they are sort of chaotic neutral, i.e. they serve their own purposes, but once in a while they dance on the table too.

Re:Finally

[Larryish]

chaotic neutral is the way to be

unfortunately it tends to degrade into lawful evil

But the statute doesn't say that :/

[Theaetetus]

From Google's letter:

The final principle concerns the interplay between two provisions of the Copyright Act which, by their plain language, are limited to material objects: the distribution right, Section 106(3), and the first sale doctrine, Section 109. Both provisions deal with copies and phonorecords, which are material objects in which copyrighted works are fixed.

But 17 USC 106(3) just says:

Subject to sections 107 through 122, the owner of copyright under this title has the exclusive rights to do and to authorize any of the following:
...(3) to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending;

Now, Google could say that "copies" implies a material object, but it's certainly not there in the plain language. In fact, 17 USC 106(6) goes on to discuss digital audio transmissions, and doesn't distinguish them as being non-material.

Google is correct that the Capitol Records brief is inconsistent:

The present motion argues that the first sale doctrine—which permits the owner of a lawfully-made copy or phonorecord to sell it without needing the copyright owner’s permission—cannot apply to this case because no material objects change hands. But it also argues that ReDigi infringes Capitol’s exclusive right to “distribute copies or phonorecords,” despite its admission that no material objects are distributed. Either both provisions apply, and ReDigi’s service may be protected by the first sale doctrine, or neither applies, and ReDigi’s service does not infringe the distribution right.

But they should be focusing on that inconsistency, rather than claiming the statute says something it doesn't. It almost seems like Google is trying to argue that First Sale doesn't apply, because "copies are not material objects".

Re:But the statute doesn't say that :/

[devjoe]

But 17 USC 106(3) just says:

Subject to sections 107 through 122, the owner of copyright under this title has the exclusive rights to do and to authorize any of the following: ...(3) to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending;

Now, Google could say that "copies" implies a material object, but it's certainly not there in the plain language. In fact, 17 USC 106(6) goes on to discuss digital audio transmissions, and doesn't distinguish them as being non-material.

Actually it is there, but you have to go up to 17 USC 101, Definitions to see that they are defined as material objects. But more importantly, the same "copies and phonorecords" wording is used in both 17 USC 106 and 17 USC 109, so regardless of how they are defined, the same objects subject to copyright restrictions, once legally obtained, are also resellable.

17 USC 106(6) is interesting. It specifically restricts public performance by digital transmission, which might be seen as drawing a distinction between digitally transmitting them to specific people you know and digitally transmitting them to the general public, as might happen on YouTube or p2p networks.

Re:But the statute doesn't say that :/

[bytestorm]

Parent is right:

US Code, Title 17,101 Definitions

“Copies” are material objects, other than phonorecords, in which a work is fixed by any method now known or later developed, and from which the work can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. The term “copies” includes the material object, other than a phonorecord, in which the work is first fixed.

“Phonorecords” are material objects in which sounds, other than those accompanying a motion picture or other audiovisual work, are fixed by any method now known or later developed, and from which the sounds can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. The term “phonorecords” includes the material object in which the sounds are first fixed.

They are very much defined as physical objects

Re:But the statute doesn't say that :/

[Dhalka226]

It almost seems like Google is trying to argue that First Sale doesn't apply, because "copies are not material objects".

I don't agree with you, but even if I did, don't bother looking for these kind of legal/logical gotcha's; that's not how the legal system works.

It is not at all uncommon to see a defense team put forth an argument like: I didn't kill her. And even if I did, it was self defense. And even if it wasn't, there were extenuating circumstances. And even if there weren't, it was a crime of passion. And if not, I'm a great guy and deserve to be convicted under a lesser crime! (They don't quite phrase it that way of course, but that is the essence of the argument.)

Logically, people look at that and go -- "what the fuck? What are you arguing here?" But legally it is not only sound strategy, but fully expected and required of a competent defense. It's similar in civil law. Remember, much as it might seem otherwise sometimes it's not a defendent/respondent's job to prove innocence -- it's to poke enough holes that the other side can't prove guilt/liability.

As I said, though, I don't agree with your conclusion. Google is simply saying "you guys can't have it both ways." They're not taking a position on the issues they're raising, at least not in the quotes you have; they're simply pointing out what they consider to be the plaintiff trying to have it both ways and saying "sorry, no. Pick one: It's a material object subject to one law or a non-material object not subject to either."

Re:But the statute doesn't say that :/

[NewYorkCountryLawyer]

Both "copies" and "phonorecords" are defined terms in the Copyright Act. They are both defined in 17 USC 101 as "material objects".

Re:I thought Google was evil now?

[Tharsman]

But this appears to be a good thing logically.

Help, I'm so confused, do I hate or like Google today?

They have vested interests in cloud computing.

There is no "good" or "evil", just greed, biases and stubbornness.

Re:I thought Google was evil now?

[L4t3r4lu5]

Bad people can do good things. Good people can do bad things. Hitler turned Germany from post-WWI depression into economic powerhouse in 20 years.

And stop anthropomorphising corporations; They have no morality. A good corporation is one which makes the most money for its shareholders.

Re:Eh

[devjoe]

IANAL, but in a recent story, we heard that Capital Records was suing ReDigi, a service that allows people to re-sell used MP3s, claiming that they such resale is not permitted by law. Google wants to put forth an argument that it is.

The exclusive rights a copyright holder has (which are enumerated in 17 USC 106) include the exclusive right to make and distribute "copies" and "phonorecords". There are some other exclusive rights such as making derivative works and public performance, but they are not relevant here. But under 17 USC 109, the owner of a lawfully made "copy" or "phonorecord" is permitted to sell that copy or phonorecord, without any authority from the copyright owner. Google argues that either owners of MP3s have this resale right, or else MP3s are considered neither of these things and their creation and distribution is not restricted by law at all, because the same terms are used in both sections of the law.

In 17 USC 101 both of these words are defined as "material objects" of some sort. Capitol apparently argued that MP3s are not material objects and thus not subject to the right of resale, but Google pointed out that this same argument would make the actions of copying and distributing MP3s not fall under the restrictions of copyright at all.

Re:I thought Google was evil now?

[stanlyb]

Or to paraphrase it: The only good corporation is the dead corporation.

Re:Eh

[NonUniqueNickname]

MP3 files are both a wave form and a particle stream, but not simultaneously. The RIAA will tell us which and when.

Re:I thought Google was evil now?

[Tanktalus]

Or, to look at it another way, sometimes even my enemy's interests align with my own.

And sometimes my friends do things I don't like.

Re:I thought Google was evil now?

[darthdavid]

See that's the exact attitude that's gotten us into such a mess. Corporations are made of people! Yes, they exist to make money but that's not an excuse to leave ethics at the door, you can (and should) make money without being a dickhead.

Disclosure?

[Mathinker]

I'm a big fan of you, NewYorkCountryLawyer, but you really should have disclosed in the summary that you are currently counsel for the defendant, ReDigi, in this court case.

Anyway, I'm glad to hear that you seem to have found a heavy-weight ally in this case.

Re:Disclosure?

[NewYorkCountryLawyer]

I'm a big fan of you, NewYorkCountryLawyer, but you really should have disclosed in the summary that you are currently counsel for the defendant, ReDigi, in this court case.

If I'd done that, it would have seemed like self promotion. But really, it didn't take you long to find out, did you? Plus, it's not like I said anything controversial either in the Slashdot post or in my blog post; I just report the news on these cases, and leave it to others to discuss the issues.

Re:Eh

[Sinn3d]

hell if corporations can be people, files can be material object!

Re:If I may be the first to say...

[NewYorkCountryLawyer]

Please spend your time working on something that matters, NYCL.What a waste of a law degree.

Are you talking about my legal work, or my Slashdot posting. If the latter... you may have a point.

Precedent?

[Muad'Dave]

How may times have you heard commercials saying "Own it on DVD today!" or "Own it on Blu-ray Today!" ? Since they mention 'it', referring to the advertised movie, and the medium, the DVD or the blu-ray disk, they're saying that the ownership is for the movie, not the medium. Note also that they say 'OWN' it, not 'license' it.

Re:I thought Google was evil now?

[Tsingi]

See that's the exact attitude that's gotten us into such a mess. Corporations are made of people! Yes, they exist to make money but that's not an excuse to leave ethics at the door, you can (and should) make money without being a dickhead.

Yes, and while technically the bad things that corporations do are done by people, those people are not held accountable. If they were, half of the banking industry would be in jail.

Why not BUY them outright?

[L3370]

There was a discussion on /. a while back regarding this....saying the entire music industry is worth rougthly $10bn US.

Google could pony up and buy Capitol Records completely, release all copyrights held, then break up and sell what worthless assets it has left in a fire sale. While they probably have the capability to purchase the entire industry, they only need to stop there with Capitol Records aquisition.

The rest of the industry will STFU and play nice.

Re:Why not BUY them outright?

[NewYorkCountryLawyer]

Google could pony up and buy Capitol Records completely, release all copyrights held, then break up and sell what worthless assets it has left in a fire sale. While they probably have the capability to purchase the entire industry, they only need to stop there with Capitol Records aquisition.

Maybe they feel the present management of Capitol Records is doing a good job of bringing the price down still further.

Its now been denied...

[nick357]

From NYCL's site: http://beckermanlegal.com/Lawyer_Copyright_Internet_Law/capitol_redigi_120201OrderDenyGoogleMotionLeaveFileAmicus.pdf

Re:If I may be the first to say...

[NewYorkCountryLawyer]

Personally, this sounds awesome. I just wish there was more of an actual editorial written up about it, as I am not that interested in slogging through the legalese.

If you get your "legalese" translated by others, you may be getting it slanted. That's why I like to give people the actual documents, instead of telling them what the documents mean. I know it's a bit of work, but I think it's better to make up your own mind than to let others tell you what to think.

confused?

[DragonTHC]

I see you're all dazzled by the big words.

Google is saying, since cloud computing works on the premise that one file is stored and access is given based on license, then Capitol cannot argue that they are material goods. If they were material goods, they would be subject to first sale doctrine and the lawsuit falls apart.

If they are not material goods, the plaintiffs must argue that the license is non-transferable and not subject to sale.

This is what I've been saying for years regarding the whole piracy debate for music. Is it a product or a license. The RIAA seems to want both, but only when it suits them. There are not a lot of legal precedents regarding this matter.

Re:I thought Google was evil now?

[hairyfeet]

They are made of people but headed by this cabal known as the board of directors, these same "people" are boards on several corps and will often be on each other's boards so you have this good old boy system where they "reward' each other with ever higher salaries and bonuses. then there are the shareholders which thanks to day traders turning Wall street into Vegas with nicer clothes frankly would cheer if you burned the buildings down for the insurance if it caused the stock to jump 40 points. Hell look at how MSFT recently had one of its best quarters EVAR and the stock barely moved because the day traders expect corps to make iMoney or GTFO. TLDR? If the company is private they may/may not have morals but once that IPO is done its all bottom line or watch your stock tank.

as for TFA while i don't care for Google's privacy policies i hope they rip the record company a new one because somebody need to nip this Schrodinger's cat bullshit in the bud. you see they and the game companies are trying to do an end run around the law by claiming the protections of TWO states but the liabilities of NEITHER and that shit needs to DIAF. on the one hand they say 'Oh noooo, you didn't buy a disc, you bought a license to use the content! so there is no first sale rights here!" and you go "Okay, well now my disc is scratched so i'm downloading a copy since I have a license to that content" and they go "oh noooo, you don't have a license, you had a disc! That means if its scratched or broken you have to buy a new one!" BULLSHIT, fucking total stinking bullshit! NOWHERE do we allpw a corp to claim TWO states while accepting the liabilities of neither state! Either its content or its media but NOT BOTH because each of those states have clear legal liabilities associated with them. The right of first sale is one of our cornerstones of capitalism and we have ages worth of contract law dealing with licenses that clearly state what their responsibilities are in that situation, these buttmonkey's just want to eat their cake and have it too and that shit needed to end 3 seconds after they came up with it. the court needs to lay out clearly and without doubt once they claim its X they have the responsibilities of X PERIOD.

Re:Copy vs Copyright

[guruevi]

No. Capitol Records did not sell the copyrights to the music.

Capitol Records claims it sold a physical copy (whether CD or MP3) to 1 person but then did not license the buyer to resell the item which is contrary to the US First Sale Doctrine.
Google says if they claim they sold a license to the music, then they can't claim the music is protected by copyright and thus replica's can be made. Reselling may be prohibited by contract law but expressing yourself by creating a replica of an artwork licensed to you cannot be prohibited by contract law (constitutionally).
Google also says if they claim they sold an actual copy of the music and want it protected by copyright, then the buyer has the right to resell their copy (first sale doctrine).

Capitol Records either has to choose whether they want their music to be a license (under contract law) or an object (under copyright law). They cannot both limit your constitutional rights and curtail the first sale doctrine.

Re:Eh

[viperidaenz]

His cat is dead. Mystery solved. Not only is the probability that isotope has decayed approaching 1 by now, you've kept the poor cat locked in a box with out food or water for over 75 years.

Re:I thought Google was evil now?

[SlippyToad]

What music does the record company produce?

Before you start listing anything, remember that the artist makes the music, and the artist pays for the music to be recorded out of his/her own profits, and that the only material support the record company provides is a loan-sharking service that ensures that the artist is an indentured servant for most of his/her career.

The record company's contribution equals jack shit at the end of the day. They don't write the music. They don't perform it. They neither record the music, nor do they pay for it to be recorded. They are artistically and financially irrelevant to the process. Their only contribution is to loan money and control the artist's career.

Re:I thought Google was evil now?

[Whibla]

What does a film producer produce?

There's more to being a successful musician / band than simply writing a few catchy lyrics and putting them to a banging bass beat. (Feel free to change the preceeding words to suit your preferred genre of music, the principle remains the same...)

A good producer will make suggestions and edits, offer encouragement and support, provides logistical services and marketing...all of which contribute to the appeal of a band, and their financial success. Sure, there will be musicians that can do these things from themselves, but that's not where their skill set lies. After all, presumably what they're good at is making music.

I'm not disagreeing with what appears to be the majority that record companies on the whole are partially failing in their role, especially in regards modern day logistics and distribution, but, I'm sorry, the issue is not as clear cut, black and white simple as most people seem to make out. If it were then most, if not all ,musicians and bands simply wouldn't use major record companies, they'd do it all themselves. Some do. But not the ones who have become household names. Surely that must tell us something?