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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."
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.
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.
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.
All ideas^H^H^H^H^Hprocesses in this post are Patent Pending. (as well as the process of patenting all postings)
"We certainly can't let the law get in way of making money." That's been the RIAA's argument so far...
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.
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.
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.
"Anyone who [rips a CD] is probably engaging in copyright infringement." - David O. Carson
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".
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".
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.
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.
Rule of Slashdot #0: You and people like you are not representative of the larger population. - A.C.
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.
Finally had enough. Come see us over at https://soylentnews.org/
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.
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)
Or to paraphrase it: The only good corporation is the dead corporation.
I prefer the Italian: avere la botte piena e la moglie ubriaca ("to have the barrel full and the wife drunk")
MP3 files are both a wave form and a particle stream, but not simultaneously. The RIAA will tell us which and when.
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.
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.
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.
Ray Beckerman +5 Insightful
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.
Tiller's Rule: Never use a word in written form that you've only heard and never read. You will end up looking foolish.
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.
From NYCL's site: http://beckermanlegal.com/Lawyer_Copyright_Internet_Law/capitol_redigi_120201OrderDenyGoogleMotionLeaveFileAmicus.pdf
Word game?
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.
They're using their grammar skills there.
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.
ACs don't waste your time replying, your posts are never seen by me.
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.
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