Judge Rules That Resale of MP3s Violates Copyright Law

Redigi runs a service that lets you resell your digitally purchased music. Naturally, they were sued by major labels soon after going live, with heavyweights like Google weighing in with support and an initial victory against pre-trial injunctions. But the first actual court ruling is against them. Pikoro writes "A judge has sided with Capitol Records in the lawsuit between the record company and ReDigi — ruling that MP3s can only be resold if granted permission by copyright owners. From the article: 'The Order is surprising in light of last month's United States Supreme Court decision in Kirtsaeng v. Wiley & Sons, which reaffirmed the importance and applicability of the First Sale Doctrine in the United States of America.'" Redigi vows to appeal, and claims that the current version of their service is not affected by the lawsuit.

Comments

orly?

[pedestrian crossing]

Frist Sale!

Re:orly?

[Anonymous Coward]

Frist Resale!

Re:orly?

[Aonghus142000]

And there's the rub. What we have here is one judge interpreting the law as he understands it. Next it goes to the circuit who try to decide if this is a proper interpretation of the law, and the possibly back to SCOTUS to decide if this really is a proper exception to the first sale doctrine. Based on the recent poll, I'm one of those rare /.ers who follows SCOTUS. This sort of thing is why following them is worth everyone's time. Even if we only consider the US, there are enough district judges that a good lawyer can find one to agree with just about any theory of the law, and no that does not mean someone was paid off. Get back to me when the 2nd circuit makes a ruling.

Re:orly?

[RatherBeAnonymous]

Of course it's a proper exception. It's on a computer!

Let's look at this more closely

[bio_end_io_t]

Clearly the judge is a firm believer in piracy, else he wouldn't have made that ruling. Seriously though, people are trying to sell "used" mp3's?

Re:Let's look at this more closely

[Opportunist]

Hey, they're as good as new!

Re:Let's look at this more closely

[Anonymous Coward]

Nonsense like this is the inevitable result when trying to apply realworld paradigms to data (falsely referred to as 'digital goods').

Re:Let's look at this more closely

[tehcyder]

Nonsense like this is the inevitable result when trying to apply realworld paradigms to data (falsely referred to as 'digital goods').

If I pay to download a song from iTunes or wherever, in what way is it false to call that a purchase of digital goods? I get to legally listen to the song, the same as if I had bought it on a CD. The physical CD was never what I was buying anyway.

Re:Let's look at this more closely

[FireFury03]

Clearly the judge is a firm believer in piracy, else he wouldn't have made that ruling. Seriously though, people are trying to sell "used" mp3's?

Well why not? The media industry is selling time-unlimited licences to play an MP3 - that licence clearly has value, otherwise no one would be willing to pay for it. When you don't want to use it any more, why shouldn't you be able to reclaim some of the value by selling the licence on to someone else? The doctrine of first sale prevents vendors from preventing people from reselling physical goods, why shouldn't the same apply to anything which has value (such as a licence)?

Re:Let's look at this more closely

[kaizendojo]

I'd agree with you, except when you purchase an MP3 you are not actually 'buying a product', you are licensing it's use. In the law, there's a big difference. Next time, look a bit closer at that huge agreement you skip past on iTunes, Amazon and the like.

Re:Let's look at this more closely

[gstoddart]

I'd agree with you, except when you purchase an MP3 you are not actually 'buying a product', you are licensing it's use. In the law, there's a big difference.

My problem with that is companies are increasingly adding licenses to what should be products.

Just because they say they're licensing it, doesn't mean they're not selling you something.

And in a lot of cases, if I'm just 'licensing' it for temporary use, they better start changing their cost structure -- because it costs as much to 'license' a CD as it does to buy the damned thing and rip it yourself.

Companies want the best of both worlds with this, and this ruling just goes further to give it to them.

Re:Let's look at this more closely

[XLT_Frank]

Nonsense like this is the inevitable result when trying to apply realworld paradigms to data (falsely referred to as 'digital goods').

If I pay to download a song from iTunes or wherever, in what way is it false to call that a purchase of digital goods? I get to legally listen to the song, the same as if I had bought it on a CD. The physical CD was never what I was buying anyway.

Read your iTunes terms and conditions...

Re:Let's look at this more closely

[GIL_Dude]

You've nailed the key point. The fact of the matter is that the file (or copies of the file) should have no bearing on this case. The issue is the license (since you are licensing, not buying) and whether or not it should be transferable when it was likely specified in the fine print somewhere that it wasn't transferable. The whole "it isn't the same file when you transmit it to their server" is a red herring. I'd imagine the court case must have been brought against something pretty narrow in order for it to come down to a decision about the file (since the file should really be irrelevant to the use rights granted by the license). Maybe a higher court will need to figure this out and bring this out of the realm of technical issues and copies of files and get it back to the licensing of imaginary property.

Re:Let's look at this more closely

[mcgrew]

The lesson -- you can't buy am MP3. I would think people would understand that. Buy the CD instead, you CAN resell physical media.

Re:Let's look at this more closely

[Artifakt]

The only way the 'physical CD was never what you were buying' is if you never sold a used CD, never loaned a CD to someone else, and never used that CD in both your home and car players. If you really did that, for every single CD you bought, you are one in a million, or rarer. Now why are you posting on slashdot to advocate that a law which only suits one person in a million is somehow defensable? Why on Earth are you thinking that the other 999,999 people in your situation shouldn't feel like they have lost any rights just because you are the one in a million who never bothered to exercise any of yours? You're a weird statistical anomaly, one in a million. The law isn't about you and only you. You're like the guy who smokes 2 packs a day and still lives to be 90 saying that you don't see the problem with cigarettes and what does that word 'cancer' mean?

Re:Let's look at this more closely

[Anonymous Coward]

It's a good thing we are only purchasing the license to listen to the mp3.. preferably in a dark hole where no other unpaying individuals can listen to the "performance".
Otherwise they might have a more appropriate price like 40,000,000 to hear Biebers newest hit's like Baby Baby I tied my shoes.

Re:Let's look at this more closely

[Lumpy]

I take it as buy mp3's and then share them far and wide to everyone you can.

Re:Let's look at this more closely

[omnichad]

And in a lot of cases, if I'm just 'licensing' it for temporary use, they better start changing their cost structure -- because it costs as much to 'license' a CD as it does to buy the damned thing and rip it yourself.

This is why I just buy the CD, rip it, and put the CD in a binder in my closet as a backup. I am hoping not to see physical media go away for movies anytime soon, either. Even though ripping DVD's and Blu-Rays is technically illegal under the pathetic DMCA.

Re:Let's look at this more closely

[mcgrew]

If I pay to download a song from iTunes or wherever, in what way is it false to call that a purchase of digital goods?

You didn't buy anything, you paid a fee to download a file.

I get to legally listen to the song, the same as if I had bought it on a CD. The physical CD was never what I was buying anyway.

Yes, it was. You don't own the songs on the CD, only the CD. Nobody owns a song, not even the copyright holder, who only holds a "limited" time monopoly on its publication. Buy the CD, rip it to MP3 and resell the CD. You're not breaking the law, since you didn't publish anything.

I really don't see why anyone was surprised at this ruling.

Re:Let's look at this more closely

[msauve]

The difference is that when you buy a CD, then play it, you're not making a copy (reading the CD and turning the bits into sound isn't considered copying under copyright law). When you sell that CD to another person, you're not making a copy. So, no copyright infringement is involved.

If you sell an MP3 by copying bits to someone else's media, you're making a copy even if you then delete the original. I suppose it could be legal to sell MP3's if you sold them on the media they were originally saved on, so no copying was involved. e.g. buy an MP3, store on media, then sell the media along with the MP3. But even there, if you stored it on a hard drive, then burned it on CD so you could sell it, that would involve making an unauthorized copy (since a license is needed for any further copying).

I'm not saying that's how it should work, but that's how the law appears to be written.

Re:Let's look at this more closely

[serviscope_minor]

I'd agree with you, except when you purchase an MP3 you are not actually 'buying a product', you are licensing it's use. In the law, there's a big difference.

Is there? There's also laws in various places that if it looks like a sale and acts like a sale then it is a sale, no matter what the company tries to claim.

Quack quack.

I believe there was a story in Germany recently where it was ruled that some chap was allowed to resell some expensive used software (Autocad?) despite the company trying to claim it was a licensing thing, not a sale.

It turns out that pretending that you're not selling isn't sufficient to get around the stautory rights of the customer.

We shall see how this one plays out.

Re:Let's look at this more closely

[iamgnat]

I agree companies are taking the license idea beyond the realm of reasonable, but to play devils advocate I actually understand and agree with this ruling.

The reality is that for physical goods the average person can not buy a book/CD/DVD/etc.., make an undistinguishable copy (including packaging and presentation), and then sell the copies on the used market while keeping the original for themselves. Certainly it's possible to do, but not in a way that is financially worthwhile to the average person.

For digital files, anyone with a computer and a copy command can make such undistinguishable copies and pass them off as the original. In this case you don't have to make the copy yourself, just uploading it to the service makes the copy and your copy remains intact and it's only your word that you'll never use the file again without first purchasing a new license. The reality is that in most cases even the honest person won't delete the remaining file (and certainly not all copies they may (possibly without even knowing) have. Then some time down the road they'll go through cleaning up old files, have forgotten that they've "sold" that particular track, and think "hey, I haven't heard this song in a long time. I should listen to it". There doesn't have to be malice involved for the application of first sale to fall down.

I wholly support the idea that most licenses should be transferable in a manner that each person in turn can recoup some of/all/more than their original purchase price if there is a market for the "used" license. For people to stick their head in the sand and claim digital media should be treated the same as physical media is not helping anyone as they are just saying what won't work and not reasonably working on solutions that will.

To bring politics into it, this is no different than what the NRA is doing over gun legislation. The reality of the world is that legislation is coming regardless if gun owners want it or not. The NRA's stance of legislation not working and refusing to be a contributing part of the discussion just means that when it does finally come it will not favor the legitimate and responsible gun owners.

The discussions about copyright, IP, and piracy are much the same. The average /.er sits on the internet and goes on about "information wants to be free" and doesn't contribute to a solution that meets the needs of product creators to see a return on their investment while also protecting the consumer from being violated in the process. Just like the NRA, while we (collectively) sit here and act like petulant children refusing to play the game, those we oppose are playing the game and re-crafting the rules to work against us.

Re:Let's look at this more closely

[jonbryce]

Contracts don't allow you to rewrite the law of the land, so if the contract doesn't agree with the first sale doctrine, the contract has to give way, not the first sale doctrine.

Re:Let's look at this more closely

[FireFury03]

reading the CD and turning the bits into sound isn't considered copying under copyright law).

Debatable. IMHO running a piece of software shouldn't be governed by copyright law, but certainly some parts of the software industry believe that you need a licence to waive the copyright laws, since you are inherently copying the software into RAM. I don't think this has ever been tested in court (?)

If you assume that these parts of the software industry are correct (which I don't, but I doubt my views count), then surely copying a CD into your CD player's playback buffer is copying and requires a licence?

If you sell an MP3 by copying bits to someone else's media, you're making a copy even if you then delete the original.

If I want to move an MP3 from one hard disk to another on my computer then I'm doing exactly the same. Am I not allowed to do this?

Re:Let's look at this more closely

[jabuzz]

You could download it straight onto a USB pen drive of suitable capacity.

I would note that you can buy audio books in MP3-CD format. That is a CD conforming to the Yellow book standard with a bunch of MP3 on in. Apparently selling these second hand is now illegal, hum...

Re:Let's look at this more closely

[FireFury03]

whether or not it should be transferable when it was likely specified in the fine print somewhere that it wasn't transferable.

I'm fairly sure the licences say you're not allowed to transfer them. However, the question is, is this an enforcable term - you're not allowed to put just anything in a licence, some terms are not legal. Why should a licence be allowed a "nontransferrable" clause, but a book, loaf of bread, chocolate bar, etc. not?

since the file should really be irrelevant to the use rights granted by the license

Unfortunately, the media industry wants it both ways - they want to sell you a licence *and* the data itself as an inseparable bundle.

). Maybe a higher court will need to figure this out and bring this out of the realm of technical issues and copies of files and get it back to the licensing of imaginary property.

Re:Let's look at this more closely

[macraig]

It's not the physical file that is being resold; it's not even the particular arrangement of bits that the file contains that is being resold. What is being resold is the license to use the file and its contents.

Re:Let's look at this more closely

[crontabminusell]

Except CD's are drastically overpriced. Also, you have to deal with purchasing an entire disc for maybe only two songs you actually want to listen to. No, don't buy the CD if it isn't what you really want, because then you're supporting the mediocrity of the artists and the overpowered corporations behind them.

Re:Let's look at this more closely

[findoutmoretoday]

When you sell that CD to another person, you're not making a copy. So, no copyright infringement is involved.

CD's have bigger problems than MP3, If you go outside with the CD on a cloudless day, the reflected sunlight will create photonic copies of the CD that will last forever minus one day. And considering the way the law is written that could be illegal.

Re:Let's look at this more closely

[msauve]

It's not debatable, except in the sense that a lawyer will debate any POV, regardless of its validity. From 17 USC 1:

"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 temporal movement of bits to allow sound reproduction does not constitute "fixing." Note that there are specific restrictions on public performance, so a theater can't just buy a DVD and show that to a paying crowd.

"If I want to move an MP3 from one hard disk to another on my computer then I'm doing exactly the same. Am I not allowed to do this?"

Depends on the license you received with the MP3. Looking at the iTunes store terms (yea, they're technically not MP3, but this the the largest distributor, so good as an example):

(ii) You shall be authorized to use iTunes Products on five iTunes-authorized devices at any time...

(iii) You shall be able to store iTunes Products from up to five different Accounts at a time on compatible devices, provided that each iPhone may sync tone iTunes Products with only a single iTunes-authorized device at a time, and syncing an iPhone with a different iTunes-authorized device will cause tone iTunes Products stored on that iPhone to be erased.

(iv) You shall be authorized to burn an audio playlist up to seven times.

and Amazon

Upon payment for Music Content, we grant you a non-exclusive, non-transferable right to use the Music Content only for your personal, non-commercial, entertainment use, subject to the Agreement...you may not redistribute, transmit, assign, sell, broadcast, rent, share, lend, modify, adapt, edit, license or otherwise transfer or use the Music Content.

So, the both licenses allow you to make copies, to authorized devices and CDs (Apple), or "for your personal, non-commercial, entertainment use" (Amazon). You're also allowed to make a backup copy.

Re:Let's look at this more closely

[Anonymous Coward]

Except CD's are drastically overpriced.

Compared to what? Lossy files that can't legally be resold?

Re:Let's look at this more closely

[Sique]

The issue is the license (since you are licensing, not buying) and whether or not it should be transferable when it was likely specified in the fine print somewhere that it wasn't transferable.

Sometimes I am glad living in the E.U.. There the European Court of Justice clearly ruled, that any transfer of a digital good (be it via physical media or via download or any other means of transfer) including a permanent use license for an one time payment is a sale, and the First Sale Doctrin applies. There is no "just licensing". Either the license is permanent, then it's a sale, or the license has to be renewed for an additional payment, then it's a rent.

Re:Let's look at this more closely

[interval1066]

I always break my mp3's a little before selling them.

Re:Let's look at this more closely

[Type44Q]

The physical CD was never what I was buying anyway.

SPMMD!

(Someone please mod Moron down) :p

Re:Let's look at this more closely

[Anonymous Coward]

Publishers tried adding licenses to books also. Courts said no.

Re:Let's look at this more closely

[Jane Q. Public]

"Terms and Conditions" are not the same as Copyright law. I do wish people would get this through their heads.

There are many, many cases in which Copyright law differs from the terms and conditions offered by a software or media company. In those cases, it is Copyright law that applies, not the terms and conditions the company tries very hard to convince you are binding.

Having said that: if you agreed to terms and conditions prior to the sale, in many cases those terms actually are binding.

Re:Let's look at this more closely

[LordLimecat]

Because the entire concept of "used goods" works because physical goods degrade and are difficult to replicate. When something doesnt degrade, and you can easily (and untraceably) make a duplicate, and a purchaser of the used article cannot verify that you have no copies left, the whole concept falls apart.

Re:Let's look at this more closely

[nine-times]

I think it doesn't matter whether people are really reselling them, because the problem of selling used MP3s highlights the difficult and paradoxical nature of copyrights in a digital society.

Normally, when you buy something, you then own it and are allowed to do anything you like with it. You can sell it. You can destroy it. You can lend it to other people. You can give it to someone else. If you die, someone inherits it. You're responsible for its upkeep, and when it wears out, you're responsible for its disposal. All of that makes sense when you're talking about "things"-- i.e. cars, books, furniture.

But when you're talking about "intellectual property", some of those things aren't allowed, and some of them don't really make sense. "Selling" an MP3 that you've bought is a bit weird, because what you hand over will probably be a *copy* of the MP3 file you bought. A perfect and identical copy, sure, but a copy. You can then destroy the original, but then what are you really selling?

Some people would say that you're being sold that copy of the MP3, and you're not supposed to copy it, but that's nonsense. Most likely, even your "original copy" is not the original copy that you bought. Most likely, you've copied it from one directory to another, one hard drive to another, etc. Maybe at some point you copied it to an external hard drive, reformatted your system drive, and then copied it back. If you ever listen to the MP3, it's being copied into some cache, transcoded into another form, copied into RAM, etc. You're making copies all the time, so what you're buying isn't a "copy" that you aren't allowed to reproduce. It must be that you're purchasing some kind of "right to possess and make use of the MP3". So it's a license.

Unfortunately, digital purchases are always framed in terms of licensing, and that licensing can be "any arbitrary thing that the licensor makes up." They bury the terms in complex contracts that the licensee never reads, partially because they release a 200-page revision every 3 days. The reason I say it's unfortunate is that is has the effect of subverting consumer protection laws as well as freedoms like the "first-sale doctrine". Consumers are left with no rights and no protections, and the licenses usually boil down to "the licensor can do whatever he wants and is responsible for nothing."

Re:Let's look at this more closely

[LordLimecat]

Because noone has solved the problem of "how do you ensure that the user has transferred all of his copies to the recipient", among other things.

Re:Let's look at this more closely

[Jane Q. Public]

"I really don't see why anyone was surprised at this ruling."

This ruling is surprising because it violates the First Sale doctrine.

Let's get this straight: this case was about purchase of an MP3. Not a "license".

In no other case (as recently affirmed by the Supreme Court) is an author or publisher of a work allowed to place conditions on the item after the "first sale", unless a prior agreement exists. The only restrictions are those embodied in current Copyright law.

This ruling would seem to directly contradict that. Unless there is something unusual about the case that is not in the article.

Re:Let's look at this more closely

[Anonymous Coward]

Hey, they're as good as new!

This is exactly why many engineers don't understand what the lawyers are saying.

To an engineer, if the contents of file A = the contents of file B, then file A == file B. They are identical.
To a lawyer, the provenance of the file also matters. If file B was created as a copy of file A, then file A != file B. One is the original, one is a copy, and that invisible, indelible distinction can't be washed away by any technical wizardry.

When you deal with issues of law, it's the lawyer's definition that matters.

Re:Let's look at this more closely

[Zordak]

I haven't read the decision, but I can see a clear distinction between an MP3 and a CD. Copyright law is all about the act of copying something. Under copyright law, even loading a program into RAM from a disk constitutes "copying" (there is a special statutory exception that explicitly allows this if you are the legitimate owner of a copy of a program). The problem with MP3s is that you can't re-sell them without copying them, unless you purchased a physical disk of MP3s or something, in which case you could resell that disk.

In other words, whether or not you agree with current copyright laws, I believe the judge made the right decision under the laws as they exist. First sale applies to a physical object, but can't apply to digital stuff because reselling digital stuff necessarily requires making a copy.

Re:Let's look at this more closely

[Githaron]

You are using a too rigid definition of copying vs transferring. In the digital world, no information is transferred without "copying". The difference between copying and transferring is simply duration. A router copies digital packets into its buffer, send a copy down the link, and deletes the packet from its buffer. We don't require networking equipment owners to have a license for all content transfer over their equipment. Your computer copies music into RAM, its registers, and then sends a electrical copy to the speakers/headphones. We don't require a user have two or three licenses to use a music file. I don't see why transmitting a file once and then deleting the source file should be constituted as a copy instead of a transfer. Besides, as other have said, the legal entity involved is the license not the file itself.

Re:Let's look at this more closely

[Jane Q. Public]

Addition to my comment:

Courts have consistently held for over 100 years that the form of a work is immaterial. A player piano roll is no different from the printed sheet music for Copyright purposes. Software on paper tape is identical, for Copyright purposes, as a computer file or the same code printed in a book. MP3s are identical (for Copyright purposes) to the music from which they are made... whether written, or on a record, or on a CD.

No difference. So there is no justification for them being treated differently.

If TFA is an accurate description of the lawsuit, then ReDigi has very, very good grounds for appeal. This judge apparently has his head stuffed somewhere the sun doesn't shine.

Re:Let's look at this more closely

[Gutboy]

Debatable. IMHO running a piece of software shouldn't be governed by copyright law, but certainly some parts of the software industry believe that you need a licence to waive the copyright laws, since you are inherently copying the software into RAM. I don't think this has ever been tested in court (?)
WoWGlider lost a case where Blizzard claimed that them copying the game into memory violated their copyright. http://en.wikipedia.org/wiki/Glider_(bot)

Re:Let's look at this more closely

[Anonymous Coward]

LOL - Nothing is binding if you have an attorney, money or a loophole. Pick two of those things and you can do as you wish.

Re:Let's look at this more closely

[Anonymous Coward]

I'd agree with you, except that if you look at the back of the case of a CD from a major label, it says exactly the same thing: that you are not buying any and all rights to use the music contained therein. It is licensed for a particular, limited use. How is an MP3 any different because the packaging/format is different?

Re:Let's look at this more closely

[msauve]

You're trying to apply the dictionary definition of "copying" to copyright law, which has its own definition.

Re:Let's look at this more closely

[Dcnjoe60]

It's not the physical file that is being resold; it's not even the particular arrangement of bits that the file contains that is being resold. What is being resold is the license to use the file and its contents.

And you were given the opportunity to read and sign the licensing agreement before purchasing the mp3? Shrink-wrap licenses didn't hold up in court because you didn't have the opportunity to read and agree to the license prior to opening the package. Seems like using the license argument on mp3s would fall under the same thing.

Re:Let's look at this more closely

[PhxBlue]

A prior agreement ... like a EULA?

Re:Let's look at this more closely

[Anonymous Coward]

Suppose I'm selling a physical book on my website it cost $10. You give me $10 and i ship you the book. everyone is happy, but wait a minute on page 54 of the terms of service I put in a close that i'm not selling you the book but a license for unlimited use of the book and you are not allowed to ever give away, sell, or let anyone else read the book. Are you OK with this? If you give it to good will when your done with it does that mean you should go to jail\pay a fine? why is this OK with mp3's but not a physical book?

Re:Let's look at this more closely

[hawguy]

Except CD's are drastically overpriced. Also, you have to deal with purchasing an entire disc for maybe only two songs you actually want to listen to. No, don't buy the CD if it isn't what you really want, because then you're supporting the mediocrity of the artists and the overpowered corporations behind them.

Amazon's top 3 in music today:

The 20/20 Experience - MP3: $10.99, CD : 11.47
Delta Machine: MP3: $14.99 CD $16.79
Based on a True Story: MP3: $9.49 CD: $9.99

Considering that the CD costs include shipping (super saver or prime), the CD doesn't seem overpriced considering that you get a physical object that you actually own and can resell.

If you don't have to have the latest albums when they come out, then you can buy used CD's, which typically cost less than the MP3, even with delivery costs included.

Re:Let's look at this more closely

[mcgrew]

Thank you! When did copyright change from outlawing publication? After all, there are Xerox machines in the library.

Re:Let's look at this more closely

[Anonymous Coward]

Buy the CD, rip it to MP3 and resell the CD. You're not breaking the law, since you didn't publish anything.

I really don't see why anyone was surprised at this ruling.

Yes you are. Ripping the CD is making a copy. That's exactly what you're not allowed to do. There is an exception for making a backup but that would not extend to you selling the original and keeping the backup.

Re:Let's look at this more closely

[Jane Q. Public]

"A prior agreement ... like a EULA?"

A typical EULA is often called a "shrink wrap license" in regard to software. An "agreement" that is contained in the box, or in a pop-up window during the install procedure. It can't be legally binding because it is only seen after the transaction has already been made. Trying to enforce that as a "binding agreement" violates just about every principle of contract law that has ever existed.

On the other hand, if there is a EULA, like on the website for example, that you have to agree to before the sale, yes it can be binding. For example, if you agree that you are only licensing the product, not buying it. Etc.

As long as it's made before the transaction, a "licensing agreement" or "terms of use" can be binding.

Re:Let's look at this more closely

[mcgrew]

Yes, I agree that CDs are overpriced unless you buy an indie title (five or ten bucks) and shitty bands produce CDs with maybe one acceptable song and the rest dreck, but at least with a CD you own it, unlike an MP3.

I never DL from iTunes, I just buy used CDs at Recycled Records or the Elf Shelf. Again, five or ten bucks -- and I won't buy music from shitty bands that can only have one in fifteen songs worth listening to. There are just too many talented musicians to waste my time and money on the semi-talented.

Re:Let's look at this more closely

[Anonymous Coward]

Well, first, you have to decide: either I'm BUYING the MP3/CD/DVD/BluRay/whatever or I'm LICENSING it. One cannot have it both ways.

If I'm LICENSING it, it means that I can do as many copies of each MP3/CD/DVD/BluRay as I want... oh, wait, no I can't, because DRM. So... I guess, since I'm LICENSING it, I can just request them to send me a new MP3/CD/DVD/BluRay, if, for some reason, I lose it or damage it, no? Not gonna happen.

So, I guess what I should do is to download "pirated" copies of it online, which would be 100% LEGAL, since I have a time-unlimited LICENSE for it (as long as I'm not uploading), right?

Just checking...

Protip: Licensing is regulated by contract law. I haven't signed any contract last time I bought a CD. Make of that what you will.

If INDEED music was not sold, but licensed, they could define any number of arbitrary clauses for you to follow (e.g. "this music/video can only be heard/seen by the person who bought it"). Think about it... if they COULD do this, don't you think they already WOULD be doing it?

TL;DR: No, when you buy an MP3, you're not "licensing" anything nor "receiving a license". You are LITERALLY BUYING an MP3. (That's why you'll hear "Buy now on iTunes" rather than "License now on iTunes".) It doesn't really matter if their buried EULA says that you are licensing it, rather than buying it: such "licensing" contract wouldn't even be binding (contracts and EULAs don't trump the LAW).

Re:Let's look at this more closely

[Anonymous Coward]

That "agreement" is illegal in Europe, despite what the America *IAAs will try to tell you.

Re:Let's look at this more closely

[gnasher719]

I'm fairly sure the licences say you're not allowed to transfer them. However, the question is, is this an enforcable term - you're not allowed to put just anything in a licence, some terms are not legal. Why should a licence be allowed a "nontransferrable" clause, but a book, loaf of bread, chocolate bar, etc. not?

First, because there is copying involved and therefore copyright law applies and can make all the difference. Second, because there can be different laws for different things.

Re:Let's look at this more closely

[FireFury03]

Because noone has solved the problem of "how do you ensure that the user has transferred all of his copies to the recipient", among other things.

Same goes for CDs. If I were to sell you a CD (which I'm legally entitled to do) there is no way to ensure that I didn't copy it first. All you can say (in both the CD and MP3 cases) is that retaining a copy (not selling the original) would be copyright infringement.

Re:Let's look at this more closely

[Anubis IV]

IANAL, but I just skimmed through the iTunes Store Terms and Conditions, searching for the word "license", and I can't find a single instance of the word being used in relation to music files. It's only used in relation to content that publishers (or reviewers) post to the iTunes Store (i.e. you grant them a license to post your review or publish your music), as well as in relation to apps both for Mac and iOS (which work in the manner you were talking about, but that was never in question).

Similarly, Amazon's Conditions of Use don't mention a license in relation to anything other than Amazon Services, and I think I'm justified in saying that downloading an mp3 file is not considered part of their Amazon Services, since their services are all continual, ongoing services with cloud-based or web-based components, rather than one-time transactions.

So, if the two biggest digital music sellers aren't distributing their files under license, who exactly are you talking about that's doing it? Or am I just looking in the wrong legal documents (which is, admittedly, quite possible)?

Re:Let's look at this more closely

[CanEHdian]

Google "buy on itunes"

About 5,290,000 results (0.35 seconds)

Wow. Even discounting duplicates and irrelevant results, that is a lot of Cease & Desist letters that are going to have to be sent out.

Re:Let's look at this more closely

[Anonymous Coward]

Pretty simple loophole around this:

form a corp for every mp3 you purchase. That corp owns the MP3 (you purchase it for the corp). Sell the corp. Ownership of the MP3 license goes with the corp ownership.

Re:Let's look at this more closely

[CanEHdian]

On the other hand, if there is a EULA, like on the website for example, that you have to agree to before the sale, yes it can be binding. For example, if you agree that you are only licensing the product, not buying it. Etc. As long as it's made before the transaction, a "licensing agreement" or "terms of use" can be binding.

But you might argue that if you click on a button on an artist's website that says in huge letters "CLICK TO BUY FROM iTUNES!" that it overrides the small print.

Re:Let's look at this more closely

[Anonymous Coward]

That is not a new problem. If I buy a CD, I can copy it and then sell the original. Why should this rule be a blocker for the resale of digital goods when it is accepted for nondigital goods?

Re:Let's look at this more closely

[AndyVM]

Si?

Re:Let's look at this more closely

[Anonymous Coward]

It's not an either/or.. BOTH MP3 and CD can be overpriced.

Re:Let's look at this more closely

[wagnerrp]

Surely if they could legitimately make that claim, studios selling digital music downloads would charge you for a dozen copies of the song, as the data bounced across that many routers on its way from the content server to your machine.

Re:Let's look at this more closely

[hawguy]

It's not an either/or.. BOTH MP3 and CD can be overpriced.

The last time I bought significant numbers of CD's (hundreds) was in the late 1980's, early 90's. Back then a CD cost around $10 - $15. $10 in 1990 dollars is around $20 in today's dollars, so CD's cost about half what they used to.

What is your definition of "overpriced"?

But back then it was easy to buy and sell used CD's in places we used to call "record shops". I don't think many of those places still survive.

I was surprised to find that mainstream titles are still sold on Vinyl -- the vinyl release of The 20/20 Experience (MP3: $10.99, CD : $11.47) costs $26.

Re:Let's look at this more closely

[CastrTroy]

This is why I won't spend money on digital music. Digital music should be significantly cheaper than buying a physical CD. I've actually seen quite a few cases where the downloaded album is more expensive than the CD.

Re:Let's look at this more closely

[Anonymous Coward]

That's just it, though. First Sale is only about the physical object, not the license. If a copyright owner allows you to make limited reproductions by an agreement, statutory or express, the Doctrine of First Sale does not necessarily mean that you can assign that right to someone else. This case is properly decided under the law.

Maybe you should have the right to transfer digital goods, but First Sale isn't what gives you that right because you're not acquiring a physical good in the transaction. There's no concept of first sale rights in this sense with intangible licenses. That means either it's time for an expansion of the right to include intangibles or that a different change to copyright law to achieve the same effect is needed.

Re:Let's look at this more closely

[Anonymous Coward]

I wonder if it would be legal to resell re-encoded audio files such that each successive "sale" wasn't actually as clean as the original purchased version. It would be the digital analog of normal wear and tear.

Re:Let's look at this more closely

[Alarash]

If you are comparing to Amazon, you should also take into account that a CD is of superior quality. Amazon sells in 256 Kbps last time I checked, but even if they started selling 320 Kbps V0 CBR the quality would be below that of a CD (which is lossless quality). Only if they started selling in a lossless format (AAC, FLAC) it would be comparing apples to apples. I'd take a CD over a MP3 any time of the day, even for a few more bucks.

Re:Let's look at this more closely

[AmiMoJo]

Whenever I listen to a CD or read a book or watch a movie a copy gets created in my brain. Not a very good copy, to be fair, but the fact is that even if I sell the physical copy I still have the one in my head.

Anyway, in this case they somehow "securely" deleted the MP3s from the original owners HDD to make it more like a sale rather than a copy.

Re:Let's look at this more closely

[bdwebb]

The issue is that I have not been able to purchase more than 1 or 2 CDs in the last 15 years that hasn't been half trash, half the songs I want. Regardless of whether or not the CDs are affordable, if I am paying for half fluff and half what I actually want it becomes overpriced again.

The only circumstance in which CD sales make more sense than song by song sales anymore is if I am able to select the music I want to include on the album so that I am paying for what I want. In the case of digital downloads, the first sale doctrine should absolutely apply...people are misled into thinking they are purchasing something that they can use and resell if they want where they are actually getting a perpetual rental.

There may be a clear distinction between CDs and MP3s but Copyright law is designed to protect the initial sale of a product only. If a copy of the work is the only way to use the work in question, it is no longer controlled by Copyright, largely in part due to First Sale. The doctrine of First Sale was created specifically to protect consumers from copyright holders essentially owning the keys to the kingdom. As Zastai below points out, "The whole point of the first sale doctrine is that the original seller is not entitled to any special consideration once the sale completes."

I'm sure the music companies thought they had found a loophole to First Sale after they began adopting MP3 and that all they had to do now was combat piracy because every person had to own their own copy that could never be resold as any other good can. Ultimately, however, files can be sold and as long as the original owner does not retain a copy after the sale is complete, there is no Copyright violation. I'm not arguing against the fact that it is extremely difficult to prove the original owner does not still have a copy of the file, I'm arguing that this caveat has no bearing on whether or not an MP3 can be resold. It is a purchased good, not a 'rented' one.

Re:Let's look at this more closely

[bdwebb]

The terms of the store are not law. The doctrine of First Sale dictates that vendors cannot restrict the resale of products purchased for consumer use. As long as I can no longer use the product after I have transferred ownership post-sale (deleted it), it is protected by First Sale regardless of what the store's terms say. All they can do is ban you from using their service if you violate their terms and, in the case of the specific terms of each, as long as they allow you to make any copy, the argument can be made that as long as you delete all of your copies once the purchaser receives a their copy, no violation has occurred.

Keep in mind that I am well aware that it is much easier to retain a copy or to recover your deleted file after you have made the sale, however that has no bearing on the argument because as soon as you do that, you become a criminal. The point is that just because it is easier to copy, doesn't mean that it can't be resold. The consumer is not responsible for the fact that it is easy to illegally copy the product and is therefore only responsible for abiding by the law and transferring ownership in the event that the product is sold. This is also not a commercial use of the product as it is simply being resold.

Re:Let's look at this more closely

[Frobnicator]

Read the decision. The decision itself is contrary to RIAA v Diamond. It also pushes against the Betamax decision.

In case you have forgotten, RIAA v Diamond is the lawsuit that declared MP3 players legal, (format shifting and space shifting) and Betamax enabled time shifting.

The judge makes this logic, which is flawed:

Whenever a digital file is transferred, it moves from one 'material object' to another 'material object'. Title 17 has mixed definitions about what that means, but one interpretation is that when a different 'material object' has the content placed upon it, that constitutes creating a copy, which is a protected right. He rules that it does not matter if the original data is destroyed or not, it is considered a new instance of the work and is a protected right.

In RIAA v Diamond, the court declared that logic unreasonable, saying: “any recording device could evade regulation simply by passing the music through a computer and ensuring that the MP3 file resided momentarily on the hard drive.”

According to this judge's interpretation, ANY transfer of data to a new 'material object' requires the blessing of the copyright holder. That means we cannot legally transfer our files to a second hard drive, since it is a new material object. We cannot legally transfer the files from a PC to a laptop, since it is a new material object. We cannot transfer files to a smart phone or tablet or other device, because they are different material objects. We cannot transfer data "to the cloud", because it is one or more new material objects.

This ruling will be remanded to the judge within a few months.

In some ways I think the judge is trolling or admitting that he has no clue. His background is narcotics law and money laundering (and rubber-stamping plea bargains for prosecuters). He has no real experience with IP law. He's probably just waiting for the appeals court to tell him what the ruling is supposed to be since he doesn't have any clue.

Re:Let's look at this more closely

[crontabminusell]

It's not an either/or.. BOTH MP3 and CD can be overpriced.

I agree very much.

Re:Let's look at this more closely

[qeveren]

You couldn't even transfer the MP3 from storage to memory in order to play it back, under this judge's logic.

Re:Let's look at this more closely

[Myopic]

By that logic it is illegal to play CDs in a CD player because the bits are "copied" from the disc to the player's memory. In fact by that logic it's illegal to play a casette because the magnetic squiggles are copied into the reproduction hardware.

Look, it's just a stupid way to define copyright and it fails any standard of unreasonableness. What I'm saying is that an unreasonable judge sided with unreasonable plaintiffs.

Re:Let's look at this more closely

[Myopic]

Yes, that is true, and that is why it is a pro-consumer evolution of technology. Consumers now have an increased potential to engage in the secondary market, hence it improves the world. I am ashamed that any of my countrymen would advocate against improving the world or that any judge or policymaker would side with such jerks.

Re:Let's look at this more closely

[cheekyjohnson]

Interesting how the first response is to assume that a seller is 'guilty' of making an extra copy before selling it and ban the practice of selling 'used' files altogether.

Re:Let's look at this more closely

[Anonymous Coward]

What ever format you buy, you are not buying the actual music. You are buying a representation of the music. Do you own the music or the representation of it? You bought something but what is it? You're saying a CD is different from the MP3, how are they different? So, if I've purchased a MP3 file, can I sell it if I sell the disk it got download to? That would be legal right? If not, how does that differ from the CD? If I download directly to a CD I could sell that, right? The whole you have to copy bits is an asinine argument because any time you play the media the process of converting is essentially copying it! It is bogus argument on its face.

Re:Let's look at this more closely

[black3d]

No it doesn't. Read the finding. It addresses first sale doctrine extensively. The finding is that the reproduced version that is present on ReDigi's servers is not the original, thus the doctrine doesn't apply. It states that while ReDigi argued fair use extends to the copy on their servers, and Capitol didn't choose to contest that, once the user then tried to sell that copy, it violated fair use.

An equivalency you might understand is that if you purchase a CD, make a copy of that CD for personal backup (fair use), destroy the original CD and then try to sell the copy - that's a violation of copyright. First Sale Doctrine doesn't extend to the copy you made. And for good cause, otherwise there'd be shops out there stocked entirely with bootleg CDs, saying "oh yeah, we destroyed the originals.....".

The only technicality here is the nature of the copy being a reproduction even though the original no longer exists. The courts finding were consistent with copyright law in this regard. The law needs to be updated, but if you read the finding in full, you'll find it quite technically accurate.

Re:Let's look at this more closely

[msauve]

"The terms of the store are not law"

Yes, they are. They are not statutes, but they are part of contract law. Additionally, they are something the buyer agrees to, so aside from legalities, buyers are ethically bound to those terms. No one is forced to buy MP3s.

"The doctrine of First Sale dictates that vendors cannot restrict the resale of products purchased for consumer use."

First sale only applies to the physical media. You purchase the medium of a book or CD, you do not purchase the content.

17 USC 1: First sale:

...the owner of a particular copy or phonorecord lawfully made under this title, or any person authorized by such owner, is entitled, without the authority of the copyright owner, to sell or otherwise dispose of the possession of that copy or phonorecord.

...

"Copies" are material objects, other than phonorecords..."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."

As I said elsewhere, it may be legal to sell your hard drive which contains the MP3s (because it is a "phonorecord"), but there is nothing which allows one to sell the bits (i.e. sell the file).

Re:Let's look at this more closely

[black3d]

Unfortunately, copyright law (not just the courts findings) don't agree with your interpretation of First Sale in this regard. Quite specifically, the reproduced file (even if you don't have the original anymore) is not subject to First Sale doctrine. Only the original file you downloaded is. While we can quite rightly say "but there's no way to transfer a digital file WITHOUT copying it", that is a matter for copyright reform, not for an appeal. Capitol didn't even contest your right to upload a song to a cloud service for personal access. They just jumped on the fact that when you then try to sell that copy (and it is technically a reproduction, even if the original file no longer exists) then the user is violating copyright as First Sale doesn't apply to that copy.

Re:Let's look at this more closely

[Myopic]

"The temporal movement of bits to allow sound reproduction does not constitute 'fixing.'"

It doesn't? If they aren't fixed on the hard drive using a method, then what are they? They sure seem fixed to a hard drive by a method to me. I mean, the bits weren't on the hard drive, then they were, so it seems like they were fixed there. Bits are composed of magnetized materials, thus they are material objects. It's pretty hard for me to see this the way you and the judge describe it. It's like crazy talk: "the MP3s aren't material objects" and yet they exist in the universe; things that exist in the universe are made of materials.

Re:Let's look at this more closely

[Kaptain Kruton]

You ignored a key part of his argument. Hey said most albums only have a couple song that people want. I happen to agree with this. I haven't bought a lot of mp3s from amazon, but the ones I have seen have an average price of about $1.29. If you actually want an entire album, then I agree that it is worth a little more to get a physical item. However, if I only want 2 songs for a total of $2.58, I cannot justify spending $16.79 + shipping to get several songs I do not want. I added shipping to the cost because I don't have amazon prime and that price doesn't qualify for super saver.

Re:Let's look at this more closely

[Anonymous Coward]

If you put the clause (not CLOSE) on page 54 of the book, no. Because I'd have to have the book before I could read the license agreement.
But if it was on a license agreement I had access to before purchase then the burden is on me to read it.

Re:Let's look at this more closely

[kaizendojo]

In Amazon Conditions of Use - "The **licenses** granted by Amazon terminate if you do not comply with these Conditions of Use or any... " The ITunes Terms and Conditions uses the word license 98 times. But this is all academic because the Conditions or Terms of Use are themselves, licenses. Read the usage rules and intellectual property sections of the ITunes T and C for a better understanding of this.

Re:Let's look at this more closely

[kaizendojo]

I should add, I'm speaking only of the US Terms and Conditions here - if anyone want to cross check the other countries be my guest.

Re:Let's look at this more closely

[hawguy]

You ignored a key part of his argument. Hey said most albums only have a couple song that people want.

No, he made two separate arguments, I was adressing his first point:

"Except CD's are drastically overpriced. Also, you have to deal with purchasing an entire disc for maybe only two songs you actually want to listen to."

"If he'd said "Except CD's are overpriced because you have to deal with...", then you could say it was his main argument, but he clearly said that CD's are overpriced and then in a separate point he said "And you have to buy a whole disk..."

Re:Let's look at this more closely

[Anonymous Coward]

And if I burn the mp3 onto a CD, which I am explicitly allowed to do, delete all other copies in my possesion, and then sell that CD on the used market? Now I'm selling a physical object.

Whether I buy the bits burned onto a cd from best buy or buy the bits as a stream from iTunes, I'm just buying bits.

Re:Let's look at this more closely

[msauve]

Go back and re-read what you're responding to. It was about moving bits into a buffer/DAC, etc. for sound playback, NOT about storing files on a hard drive.

Re:Let's look at this more closely

[wiredlogic]

CD prices have come down slightly in the last few years. Major pop artists have new music released in the sub-$15 range and often closer to $10 whereas ten years ago the inflated pricing for the chart leaders would be more like $20-$25.

Re:Let's look at this more closely

[Anubis IV]

While I won't disagree that the T&C are licenses in and of themselves, from what I can tell, they are licenses governing the use of the site/store itself, rather than any of the purchases made from them, except as I noted earlier (e.g. apps in the iTunes Store and Amazon Services). I actually checked for that as well, just to make sure that there weren't some blanket terms covering all purchases made from the stores that extended some sort of license to them. From what I could see, no such license exists.

And I never attempted to suggest that there were no licenses mentioned in the T&C for those stores. Rather, I said that the term was never once used in relation to music files or other non-services (other than for apps in the iTunes Store). I even checked to see if they used the word in relation to something vague, such as merely saying that it applied to products offered in the store, but neither of them did that. They were very explicit in what the licenses were in relation to and extended to, with the exception of Amazon Services, which appears to be inapplicable in this case.

Again, I wouldn't be surprised if you're correct, but I don't see evidence in those documents that this is the case. Additionally, that may explain why both Amazon and Apple are currently working on ways to facilitate the resale of media from their users to other users. If we are indeed purchasing the goods rather than a license, it stands to reason that both of them will expect the law to come down against them at some point, so they're taking steps now to be prepared for or head off that eventuality.

Re:Let's look at this more closely

[Shagg]

there is a special statutory exception that explicitly allows this if you are the legitimate owner of a copy of a program

See above.

Making a copy so that you can sell it and then keeping the original, is obviously bad. However, making a necessary copy in order to sell it and not keeping the original shouldn't be any different than other forms of first sale.

Re:Let's look at this more closely

[hurfy]

But copy A would be the copy in the temporary cache. If Copy B != Copy A then the copy it (iTunes, etc) put in my music folder is not the one i bought....

I don't think i got the copy i paid for and their downloader deleted my 'original' copy!
So none of us would actually have legit files according to that :O

Re:Let's look at this more closely

[rastoboy29]

uh, that's not what they tell you.  they say you are "buying" it.  You see adds that say "OWN it today".

No, you are wrong.  they are lying.

Re:Let's look at this more closely

[Anonymous Coward]

I would argue then that playing the music, however gotten, means its going into your brain, which is landing in a material object. If you hear the music once, and remember it, its being copied. You can humm the tune back, so it got recorded (in your head). I would expect anyone wanting to listen to this music, to be forced (according to the judge), to write to the music company asking permission to listen to the recording before they actually do, and then get permission for anyone else too. Either that or the first sale doctrine applies, and the judge is all wet.

Re:Let's look at this more closely

[Fluffeh]

I was about to make the exact same point.

That case actually goes further than that though, as the folks commiting the copyright infrigement actually bought the games legally. The ruling was that even if you bought the game legally, you couldn't use it in a manner that Blizzard didn't condone.

Re:Let's look at this more closely

[Fluffeh]

This has been brought up many times here on /. before. The problem is that the corp is worth MUCH more than the actual mp3 file itself, so doesn't really solve the problem.

Re:Let's look at this more closely

[Fluffeh]

But when you're talking about "intellectual property", some of those things aren't allowed, and some of them don't really make sense. "Selling" an MP3 that you've bought is a bit weird, because what you hand over will probably be a *copy* of the MP3 file you bought. A perfect and identical copy, sure, but a copy. You can then destroy the original, but then what are you really selling?

Following that logic, you should be able to ask for a full refund at any time. You never GOT the original. You were only given a copy. The original is still at the store that is selling it.

Erm, apart from when they move their stock around to different servers. Or do a disc defrag. Or a folder rename. Or a file rename... etc etc ad nauseum.

Re:Let's look at this more closely

[Jane Q. Public]

"But you might argue that if you click on a button on an artist's website that says in huge letters "CLICK TO BUY FROM iTUNES!" that it overrides the small print."

If I were a judge, I would be inclined to listen to such an argument.

Re:Let's look at this more closely

[Frobnicator]

No, actually, he didn't. That is another part of his (flawed) logic.

The 18 page ruling is pretty simple to read. There is a section on his preface, there is a section on his reasoning, there is a SINGLE LINE of his determination, and then there is the fallout from it. Here is the single statement that matters:

[T]he Court determines that the embodiment of a digital music file on a new hard disk is a reproduction within the meaning of the Copyright Act.

His ruling is very specific to a hard disk. So if they use SSD or an SD card array or any other storage medium they can play cat and mouse for a while.

But as mentioned, searches on his legal background show he has mainly worked with narcotics law and money laundering. He obviously has no clue when it comes to either technology or when it comes to copyright. I still think he ruled that way just to make the appeals court do his work for him.

Re:Let's look at this more closely

[mdielmann]

Given your signature, I'm not sure which way to respond to your statements. So I'll do both

(Taken at face value) Well, you're a lawyer, so you clearly have more experience in the field than me. That said, I haven't heard of any specific rule where first sale specified a physical copy, and Germany (yes, not the US) has said that first sale applies to downloaded games from the likes of Steam.

(Taken as being misleading) Nice troll! Well done!

Re:Let's look at this more closely

[Opportunist]

Would you please stop giving them crazy ideas? It's not like they can't come up with them themselves!

Re:Let's look at this more closely

[Opportunist]

It would be more like artificially discoloring and staining jeans to make them look used. Normal use of digital items don't wear and tear them.

Re:Let's look at this more closely

[Anonymous Coward]

It's much, much worse than that. Have a portable CD player with anti-skip? Know why it doesn't skip? Because it reads the next several seconds into a RAM buffer.

Oh wait - that's a different object. Crap.

How many copies exist within your computer, when you hit play? Let's make a conservative estimate. The hard drive (original copy); the hard drive cache; RAM; CPU cache (which can have 1-3 levels these days, and may be separate per core). This doesn't even account for the system audio mixer, which probably has more than one transitory copy in RAM.

So 4-7 copies within your computer just from hitting play for a file you paid for. You dirty pirate, you!

Yup, this was a GREAT decision. /s

Re:Let's look at this more closely

[Anonymous Coward]

He didn't quite say that there was no right to transfer data to the cloud. He said that a user's transfer and storage in the cloud was a reproduction, but this reproduction was protected by fair use; Capitol conceded this point. However, having made this exception, the judge held that the resale purposes of the transfer excluded ReDigi from fair use protection. (10 para 2)

There is some prima faci merit to this argument. If ReDigi is profiting from a reproduction made for commercial purposes, it seems to go against the first statutory factor governing fair use:
"the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes." (17 USC 107) The judge goes in to hold that "the effect of the use" ReDigi makes of the reproduction 'undercuts' "the potential market for or value of the copyrighted work," which infringes the fourth factor. (11 para 1)

ReDigi's reply seems to be that the reproductions are made by the user, and their involvement commercially is incidental to the fair transferrings by users of their properly owned recordings. I think this is a good way of looking at the facts.

However, even allowing that ReDigi made the reproductions in pursuit of commerce, the judgement is contrary to the principles of law. He admits fair use is an "equitable rule of reason" but then does not apply it to protect a monopoly. Equitable remedy is discretionary, but equity demands a consideration of ends, and not a blind allegiance to the bark of the law.

It would be legitimate if the copyright holder had a statutory monopoly on the market in recordings. They do not - they have a monopoly on reproduction subject to fair use, and to decide this question before the examining the doctrine and defence of first sale begs the question. The characterization of the 'market for or value of the copyrighted work' in terms of the original sale value prejudges the validity of a resale market. It prejudges the question of first sale.

The first sale doctrine allows for the resale of phonographs. First sale is a common law doctrine, and it codified in the statute. Equity, and fair use, must follows the law. The doctrine of first sale is in harmony with the equitable principle of free alienation: "It is against equity to deprive freeman of the free disposal of their own property."

Later in the judgement the court admits how difficult the trade in digital copies would be, having interpreted fair use as it did. The substance of this holding is that equity will come to the aid of a monopoly (in the patent sense) to protect its profits (to which it is entitled) in original sale by ruling against the interests of those who would resell their property in the marketplace.

Unfortunately, ReDigi's commercial purpose makes this a harder case than it ought to be. If Capitol had come after two private parties transferring digital property through reproduction, the law would not have come to its aid.

The law would rather tolerate a private wrong than a public evil. With the effects in view, to construe the reproduction created by ReDigi as anything other than fair use does a grave disservice.

Re:Let's look at this more closely

[AK Marc]

It is significantly cheaper to buy MP3s. You get them from torrent, and you have as much legal right to them as if you "bought" them from a store that gives 1/10th of 1% to the artist. They have announced that if you "buy" an MP3, you have no rights to it and none of the money goes to the artist anyway. So they are doing everything they can to encourage piracy.

Re:Let's look at this more closely

[AK Marc]

You didn't buy anything, you paid a fee to download a file.

Amazon's wording is "Buy MP3". How is that not a purchase? The rulings all indicate you are wrong, and if you are right, then we need a class action lawsuit against Amazon and iTunes for a return of all digital purchase funds received, as they got those funds fraudulently.

Re:Let's look at this more closely

[AK Marc]

Contract law is not criminal law. If they are contract law, then great, let them individually sue every person and stop bringing criminal cases against people who run sites or make software.

Re:Let's look at this more closely

[AK Marc]

While we can quite rightly say "but there's no way to transfer a digital file WITHOUT copying it", that is a matter for copyright reform, not for an appeal.

The nice thing is that if the law is "wrong" enough, it isn't law. Copyright laws *must* encourage creation, or they are invalid.

That, and if we need to reform copyright, the best way to do that is to repeal all IP laws (and no, I don't consider trademark IP). We'd learn that they were never necessary in the first place.

Re:Let's look at this more closely

[AK Marc]

Right, but they aren't arresting all used CD shops until the shop owner can prove that nobody who has ever walked in owns a computer.

Re:Let's look at this more closely

[AK Marc]

I thought shrink-wrap licenses were upheld because you could always return it after you bought it, but before you used it. The issue is the content owners want to play games and get the best of both worlds sale/license.

Re:Let's look at this more closely

[chefren]

That depends on which country you live in :)

Re:Let's look at this more closely

[kaizendojo]

You make a lot of valid points here and I'll have to look closer at these 'agreements' when I get some more time. Thanks for the conversation.

Re:Let's look at this more closely

[Shirley Marquez]

That's assuming you want the entire album; in that case CDs are priced reasonably competitively. If you're talking about the typical album with a couple of good songs and a bunch of filler, the digital downloads are a much better deal.

Re:Let's look at this more closely

[Anonymous Coward]

Hah, so are used CDs!

Re:Let's look at this more closely

[Anonymous Coward]

You also forgot to mention that your network provider, the backbone provider, and likely you yourself could not download the MP3 in the first place. It requires the packets making up the MP3 and thus a copy of the MP3 itself to 'physically' exist in packet queues at routers all the way along the path to your house. This likely includes your local NAT box as well. That is, according to this judge, the purchaser was likely a pirate even before it got to his/her personal computer and his internet provider was a multiple offender as well.

Re:Let's look at this more closely

[Anonymous Coward]

Makes perfect sense. You paid for something but don't want to use it anymore so you should be allowed to attempt to sell it and recoop your investment. No different than a CD. People pay for digital downloads. Why does that automatically imply the ellimination of a secondary market?

Re:Let's look at this more closely

[Anonymous Coward]

I don't think it nessasarilly disagrees with the Betamax case. Those cases also acknowledged that a copy was being made for backup, timeshifting, etc. The difference is that Betamax created an exception for at home, non-commercial, private copying, and that's not what this is.

The problem with this case is that it basically says it's impossible to transfer a digital file.

Another interpretation might be that copyright applies to a work fixed in a tangable medium. As the owner of a copy, your allowed to do whatever you want with that combination. However in this case you are moving the "work" to a different tangable medium. Does that mean you have created a new copy? It seems open to interpretation. This court unfortunaty chose to interpret it in a way that expands copyright law and is inconsistant with the buying and trading of physical items.

Re:Let's look at this more closely

[Anonymous Coward]

If I pay to download a song from iTunes or wherever, in what way is it false to call that a purchase of digital goods?

You didn't buy anything, you paid a fee to download a file.

That's an arbitrary characterization. I bet many more people would say they bought a song.

I get to legally listen to the song, the same as if I had bought it on a CD. The physical CD was never what I was buying anyway.

Yes, it was. You don't own the songs on the CD, only the CD. Nobody owns a song, not even the copyright holder, who only holds a "limited" time monopoly on its publication.

You own a copy of the copyrighted work which is the combination of the song fixed on the CD. I'd really like to know where this "you don't own the data you own the medium" comes from (I can guess). A copyrighted work includes both the expression and the medium on which is it fixed. They are inseperable. There a difference between owning a copy of a copyrighted work and owning (or being the holder of) the copyright of the work. Both exist. The former is more like traditional ownership and the latter is a limited monopoly as you've described.

Buy the CD, rip it to MP3 and resell the CD. You're not breaking the law, since you didn't publish anything.

I really don't see why anyone was surprised at this ruling.

Actually you would be breaking the law since if you resell your CD you would be obligated to destroy any personal copies and not retain them. Also, I'm certainly not surprised given past rulings and that judges then to favor incumbant players. I'm just very disappointed.

Re:Let's look at this more closely

[Anonymous Coward]

No it doesn't. The secondary market for copyrighted works never depended on a way to ensure that no one broke the law. The level of enforcability has no bearing on whether something is legal or not. A secondary market is just that. If a person wants something, they should be able to buy it from anyone who has it. If a person pays for something and no longer wants it, the market shoud allow them to trade their future enjoyment of the purchase for cash. Are you saying that something that never degrades should be illegal to resell? That seems awfully wasteful.

Re:Let's look at this more closely

[Anonymous Coward]

Debatable. IMHO running a piece of software shouldn't be governed by copyright law, but certainly some parts of the software industry believe that you need a licence to waive the copyright laws, since you are inherently copying the software into RAM. I don't think this has ever been tested in court (?)

It hasn't been tested in court becase there's already a specific section of US copyright law that deals with RAM copies. It says that any copies made which are required to run the software do not require permission from the copyright holder. This is for software but some people have made the argument that an mp3 can be considered software as definded under that law.

It's pretty clear that when you buy a boxed copy of software, you do not need a license to run it. However if you voluntarily click on a license agreement in the course of running that software it becomes a legal gray area. Some courts have said that this causes the software purchase to become a license. The worst of these cases was the Vernor case which gives copyright holders a blanket right to call any sale a license, despite when or how that information is presented to you.

Re:Let's look at this more closely

[mcgrew]

Amazon's wording is "Buy MP3"

It's false advertising. In the UK the ASA would prevent it. In the US, customers can't win a suit for false advertising, only a competitor can. But I agree, they should all get refunds.

Re:Let's look at this more closely

[Phoghat]

In other news Capitol Records has provided the entertainment for the judge's daughters 16th birthday party

Copyright = right to control permission to copy

[blarkon]

Redigi's business model relies upon making copies. The Thai bloke was importing copies. He wasn't making copies.

Re:Copyright = right to control permission to copy

[Anonymous Coward]

But I dont Ctrl+C / Ctrl+V but I only do Ctrl+X / Ctrl+V! Honestly!

Re:Copyright = right to control permission to copy

[91degrees]

Right. No matter what the moral rights and wrongs of the case, the letter of the law is what matters here. You might be able to make an argument for fair use here but really we need a change in the law, and ideally a complete rethink of what rights the seller and buyer of digital media have.

Re:Copyright = right to control permission to copy

[fuzzyfuzzyfungus]

Redigi's business model relies upon making copies. The Thai bloke was importing copies. He wasn't making copies.

What might be more interesting(if less practical, because of higher transaction costs and longer wait times), would be a service equivalent to Redigi; but with the legally-troubling copying handled by the end user.

According to the ruling, Redigi isn't covered by first sale because the item sold is the copy that resides on User A's HDD; but the item Redigi is selling is an unauthorized duplicate residing on Redigi's servers, created from(but not the same as) the copy on User A's HDD. So, while the number of copies in the wild hasn't increased(Redigi's software deletes the copy on User A's HDD after uploading to their server), the goods being sold by Redigi are not the goods covered by first sale(yes, it probably is a bad sign that philosophy is getting dragged in; but it seems most accurate to say that Redigi's goods are qualitatively identical; but not numerically identical with the goods covered by first-sale rights. They are bit-for-bit identical; but they are nevertheless a copy.

However, given that 'buyers'(scare quotes because it looks like a sale and quacks like a sale; but is generally alleged to be a 'licence') aren't usually restricted from doing things like moving their music library between HDDs, or making/restoring backups, or time/place shifting by means of mp3 players and DVRs and the like, I'd be curious to know what the judge would say about a service that handled all the copying at the user end, like the following hypothetical:

Redigi-like software allows the user to easily notify the reseller what tracks they wish to sell. If a buyer appears, the reseller sends out a netflix-style envelope with a cheapo flash drive inside. When the user receives it, they pop it in and the software looks at the manifest file and copies and deletes the appropriate files. When it is finished, the user mails the flash drive back. The reseller then rewrites the manifest(to reflect that it is now going out to the buyer, not the seller) and sends it to the buyer, who pops it in, and has the software read the manifest, copy and delete the files, and finish the transaction.

Such a scheme would be pointlessly convoluted(and the transaction costs would probably swamp any gains for goods cheaper than an entire album or similar); but it would leave the hypothetical Redigi-analog with totally clean hands in terms of copying...

Re:Copyright = right to control permission to copy

[firex726]

Technically you make a copy too when you play the file, it'll COPY it off the HDD and into your computer's or phone's RAM.

Re:Copyright = right to control permission to copy

[Anonymous Coward]

Dont forget the copy you release as sound from your speakers.

Re:Copyright = right to control permission to copy

[Anonymous Coward]

And whatdoyouknow, a few years ago some music-business bigwig actually tried to bring that forward as a "everyone is a pirate" reasoning.

He was pretty-much laughed outof ... well, everywhere actually.

Re:Copyright = right to control permission to copy

[rossdee]

Suppose I sell someone my harddrive which just happens to contain thousands of (legitimately purchased) MP3 files (and that this is the harddrive that they were originaly purchased and downloaded onto

Re:Copyright = right to control permission to copy

[flimflammer]

That's the argument Blizzard successfully made to win a case against a popular bot. Was honestly somewhat amazed it worked.

Re:Copyright = right to control permission to copy

[blackraven14250]

Yeah, I don't think the judge realizes that computers don't work in the same way as physical good. You literally can't hand over the original, you have to copy and delete the original to "move" it.

Re:Copyright = right to control permission to copy

[Anonymous Coward]

I only use swap.

Re:Copyright = right to control permission to copy

[firex726]

I thought it was Blizzard who used that in an actual argument about someone using WoW as a client server or something.

Re:Copyright = right to control permission to copy

[kodabmx]

That's like saying you make a copy of a tape when you play it because the "data" on the tape is "read" magnetically and sent through amplifying circuits. Unless you take that "data" and assemble it into an identical file (or tape) there is no copy IMHO.

Re:Copyright = right to control permission to copy

[91degrees]

This is probably covered by fair use exceptions though. It's a temporary copy necessary for the use of the legally acquired data that in no way affects the demand for the original item, and is not made for the financial profit of the person doing the copying.

Re:Copyright = right to control permission to copy

[Anonymous Coward]

Ahh, the legal system. So if cramming it in temporary memory is considered copying, does remembering the song count as copying it too?

I guess every single person in North America will have to pay an annual fee to the RIAA, until such time they are lobotomized to made both deaf, mute, and blind. Can't have them singing songs they've heard in past, or reading them and re-writing it on paper.

And actually, writing the lyrics on paper makes it exceedingly easy to photocopy said paper. Guess we'd better break their hands, too. Also, paper is now illegal to possess. Also pens and pencils.

Re:Copyright = right to control permission to copy

[firex726]

> This is probably covered by fair use exceptions though

It's not... Blizzard sued using that argument against some modder who was doing somthing with WoW. They said he was violating copyright by making a cope in RAM.

Re:Copyright = right to control permission to copy

[91degrees]

hmm. Forgot about that.

I wonder if that will ever be revisited. It seem frankly bizarre that it's illegal to actually listen to your music without permission.

Re:Copyright = right to control permission to copy

[firex726]

Blizzard sued using that argument against some modder who was doing somthing with WoW. They said he was violating copyright by making a cope in RAM.

Re:Copyright = right to control permission to copy

[firex726]

Yea, in theory you could use it to deny practical use to anyone for anything.

Re:Copyright = right to control permission to copy

[Anonymous Coward]

Ctrl+X Ctrl+V Ctrl+V Ctrl+V

Re:Copyright = right to control permission to copy

[firex726]

> Unless you take that "data" and assemble it into an identical file (or tape) there is no copy

WTF do you think happens in RAM?

Re:Copyright = right to control permission to copy

[mrchaotica]

Yes, and that was a bad court ruling, which happens (and which is why courts of appeal exist). It is just unfortunate that case wasn't appealed.

Re:Copyright = right to control permission to copy

[TheGratefulNet]

the concept of 'original' has NO MEANING anymore when its digital.

our laws are not keeping up with actual technology. there is no 'copy' or original; there is just a file and if its one instance of 1000, nothing has been 'lost' if 1000 copies are made.

a seller who has hamburgers will transfer a hamburger to me when I buy it. property in real life fits the legal definitions well; but selling a file does not cause him to have a decrease in inventory or cost him anything in terms of loss.

we all know this. the judges know this too, but they are in the pockets of those who run things. content 'owners' make the rules these days and they are not willing to be reasonable.

Re:Copyright = right to control permission to copy

[AK Marc]

If you think RAM holds a copy, then you think that Home Depot holds 100 complete homes, and infringes on your house's architect's copyright because the contents of Home Depot are the building blocks necessary for copying the house.

Re:Copyright = right to control permission to copy

[AK Marc]

If you are going to copy-pasta, at least spell copy right. And Blizzard's argument was that using the 3rd party software used by the user violated the license for the user, so running the program was illegal. At that point, the copy on the hard drive is "illegal" but the argument was only about the running of the game, not the continued ownership of it. It wasn't that the copy in RAM was an illegal copy, but that the license to run the game was broken by running a 3rd party software at the same time.

The ruling was bad, but it doesn't need to be made worse by those who misunderstand or misrepresent it.

The physical analogy is that installing an aftermarket stereo violates your warranty, so Ford can have you arrested for using your cruise control with an aftermarket stereo installed. Yes, that's a stupid analogy, but the ruling was insane. Installing an anti-virus violates the virus's ToS, so McAfee should go to jail, not for murder, but for copyright violation for violating the virus's license.

Re:Copyright = right to control permission to copy

[xOneca]

Sorry, undoing moderation...

Let's see what happens

[swinferno]

This will be an interesting case to follow, with possible consequences for reselling other digital goods like games.

Re:Let's see what happens

[Xest]

Not in Europe it wont thank god, seeing as we've already had a sane ruling in the opposite direction for software.

I'd say this will have no effect over here, but I'd be wrong. For some reason companies seem scared to death of setting up Europe only, or generally non-US only sites that offer services to people outside the US that are much wanted by users but forbidden by US law but not laws elsewhere. I guess at very least the US has been successful in scaring most startups/established companies into believing it really does have universal jurisdiction when it comes to laws relating to the digital world.

Re:Let's see what happens

[Anonymous Coward]

Spotify is european.

Re:Let's see what happens

[pimp0r]

That's because like what happened to allofmp3.com, the US will exert tremendous diplomatic pressure to make such a company's existence as difficult as possible, even if they happen to be on the right side of the law.

Re:Let's see what happens

[gl4ss]

doesn't matter if they don't want to set up europe only.
what matters is that they want to setup european site. and they do, because we have money - and then they have to adhere to it in europe.

Re:Let's see what happens

[TheRaven64]

allofmp3.com was pretty clearly legal in Russia, but the legality of selling internationally was dubious. The US would have found it much harder to shut down if they had made at least a token effort to block international customers. Instead, they actively solicited them.

Re:Let's see what happens

[Xest]

Does it do anything that's illegal in the US but not outside though?

Re:Let's see what happens

[AK Marc]

allofmp3.com was legal in every way. It's been proven in court multiple times that importation of legal goods is legal, even if the practice is frowned on by those who exploit pricing differences. It was shut down because the US leaned on Russia to shut it down. It was never charged with any crime in the US or Russia, nor was any user ever targeted. It was "exploiting" compulsory licensing, which is used in the US, so it wasn't even an unusual trick or loophole they were using. It was just that the compulsory licensing covered things differently in Russia.

Though the same could be done in the US, for a week (long enough for someone to illegally cancel a contract and threaten millions of dollars of cost if you fight the illegal contract violation). Internet radio licenses cover podcasts. There's no reason a podcast can't consist of one and only one song in MP3 format. Then sell your podcasts for $0.10 each, named for the artist and song contained within them. Or a license for all of them for $5 per month or something like that.

But I have no doubt that the moment that happens, ASCAP will notify you that your license was terminated, and you'll not be able to do it without running afoul of copyright law. Even if they have to violate their own contract to break it, but good luck pursuing that in court.

WELL DUH !!

[Anonymous Coward]

Sell a copy ?? How about 1000 times ?? Easy !!

Does this apply to only MP3?

[ravenswood1000]

What about Flac and the other variety of formats that could be sold? This is a huge can of worms that no one will be able to bolt the lid on no matter what the judicial rulings are.

Re:Does this apply to only MP3?

[Anonymous Coward]

If this law doesn't apply to all forms of copyright, the only logical conclusion is that the law is (1) arbitrary, and (2) biased -- both of which neatly illegitimize the law.

Re:Does this apply to only MP3?

[Lunix Nutcase]

Of course it applies to music in all formats.

Re:Does this apply to only MP3?

[Anonymous Coward]

You can't sell FLAC, it doesn't have DRM.

Re:Does this apply to only MP3?

[NatasRevol]

You're not a lawyer, are you?

Hey unknown lamer

[Pikoro]

Pretty lame. My submission nearly word for word: http://slashdot.org/submission/2577041/judge-rules-that-resale-of-mp3s-violates-copyright-law

Re:Hey unknown lamer

[Dachannien]

In fairness, it does actually say "Pikoro writes" in TFS.

Re:Hey unknown lamer

[Anonymous Coward]

This is not reddit, you submit a story, and an editor (like Unknown Lamer) picks it for the homepage, usually with a link to the submission and your name somewhere.

Apart from 'lame' not being used as a reference concerning mp3s, nothing went wrong here, right?

Re:Hey unknown lamer

[Anonymous Coward]

nearly word for word

Wait, are you implying the editor actually edited it? Heresy!

Re:Hey unknown lamer

[Pikoro]

So it does. Didn't see it cause it was formatted at the end of the sentence instead of where it normally goes. I stand corrected.

First sale doctrine?

[Anonymous Coward]

Didn't the supreme court just rule that the "first sale doctrine" stands?

In other words, if I buy a book, I can sell it to somebody else.

If I sell the mp3 and delete it off my computer / mp3 player, what is the difference between a book and an mp3 of a book?

Re:First sale doctrine?

[Anonymous Coward]

I think the conclusion here is that "first sale doctrine" does not apply because the content in question was never sold, but licensed.

Customary car analog: It could be equated to selling a car. The new owner must pay to register their new car with the state. Oddly in this case however you'd be legally required to contact Ford and ask permission prior to being able legally to sell the car.

Re:First sale doctrine?

[hackula]

Idk, maybe you could photocopy a book, then sell it. Sounds like we need to ban the sale of books as well.

Re:First sale doctrine?

[fuzzyfuzzyfungus]

Didn't the supreme court just rule that the "first sale doctrine" stands?

In other words, if I buy a book, I can sell it to somebody else.

If I sell the mp3 and delete it off my computer / mp3 player, what is the difference between a book and an mp3 of a book?

The issue appears to be one of qualitative vs. numerical identity: If you buy a book, you have the right to resell that book. If you buy an mp3, you have the right to resell that mp3. The ruling here is that what is being sold isn't 'that mp3', it is a bit-for-bit copy(but nevertheless, a copy) of the mp3 that you actually had a right to sell.

Given the number of times that things get copied during the routine operations of a computer system, this would seem to totally gut any first sale of digital files in practice, and possibly even leave users requiring explicit authorization to do totally normal things(eg. If you play an mp3, your decoder software produces a 'derivative work' and stores it in system RAM, when it uncompresses the mp3, possibly with one or more additional links in the playback chain, software equalizers etc. producing further unauthorized derivative works in RAM; before the result is copied over a system bus to your sound card. If you defragment your HDD, chunks of the mp3 could easily end up being copied elsewhere and erased in the first location one or more times, possibly leaving you with no 'original' mp3 at all after a few fragmentation/defragmentation cycles.); but that seems to be the logic.

Just plain wrong

[Fnord666]

"Courts have consistently held that the unauthorized duplication of digital music files over the Internet infringes a copyright owner's exclusive right to reproduce," Judge Sullivan wrote. "However, courts have not previously addressed whether the unauthorized transfer of a digital music file over the Internet -- where only one file exists before and after the transfer -- constitutes reproduction within the meaning of the Copyright Act. The court holds that it does."

Someone needs to audit the bank records for this judge. From his statement it is clear that the judge understands, at least to some extent, the implications of the decision that he is making. That he would issue a summary judgement on such an issue is bordering on misconduct.

Re:Just plain wrong

[hackula]

Clearly this guy is simply a moron who does not have a clue about the subject matter. For example, his claim would forbid me from transferring a file over the internet to myself, but would allow people to indiscriminately transfer files over a network (your average college dorm or library contains millions of songs distributed across many computers). If he were to expand his definition to include local transfers, then you could not even copy a file from one directory to another.

Re:Just plain wrong

[serviscope_minor]

you could not even copy a file from one directory to another.

Or worse: modern high performance filing systems do things like scrubbing and RAIDing in the background copying your data all over the place. Merely using something more advanced than a simple FS on a non-RAID device would be in violation.

Re:Just plain wrong

[Endo13]

Maybe, maybe not. It might be he's trying to focus the spotlight on how outdated copyright law is in the digital era, and he may be trying to force change. Because he has a point. What's stopping you from duplicating a non-DRM MP3 and then reselling as many copies as you wish via this service? For that matter, what's stopping someone from making a copy via the analog hole and then reselling a DRM'd copy?

The fact is that digital goods simply cannot be treated the same as physical goods, and this must be considered in ALL respects. This includes everything from first sale rights, to the fact that infringement is not theft, to the whole concept of licensing vs selling, and recognizing that a license to use a digital copy is worth less than the physical version of the same good.

Re:Just plain wrong

[NatasRevol]

Everyone has to use de-duplication!

Re:Just plain wrong

[Fnord666]

Maybe, maybe not. It might be he's trying to focus the spotlight on how outdated copyright law is in the digital era, and he may be trying to force change. Because he has a point. What's stopping you from duplicating a non-DRM MP3 and then reselling as many copies as you wish via this service?

The service actually tries to address this. Before you can offer a song for sale you have to "quarantine" it to the application on your computer. The service checks to make sure you have not already sold the song before making it available for purchase. How that is accomplished I do not know. Once the song sells, your quarantined copy is deleted. You could have another copy offline somewhere but I think the software will detect it if you try to sell that same copy again. The service really did try to do more than just remind you that you are supposed to delete your copy now.

Selling Used MP3s

[Anonymous Coward]

..so, I bought an MP3 for either $1.29 or 99 cents, the artist maybe gets 5 cents of that? ..and now I want to resell it? For what price? I can understand a $20 CD with a bunch of tracks that nobody wants to listen to, or a $60 video game if I don't have a budget flush with cash.. but $1? ..and so the original owner...err..excuse me.."license holder" promises they are going to erase the MP3 from their storage after they transfer the file to the third party buyer?

Wow.. short of the label not carrying the song in their catalog anymore I don't know why you wouldn't go to the original source.. I'm sure there are reasons - like someone got tired of their entire music collection and selling it for $20..

I don't see how you can prove uniqueness

[Maxo-Texas]

Sure, I can say that I deleted the Mp3, but how can I prove it?

I might have copies of it elsewhere, on memory sticks.

Personally, I think a fair price for mp3's is under 10 cents these days.
And I think when you actually go to the trouble of "buying" one, then you should be able to redownload it in the future.

Re:I don't see how you can prove uniqueness

[SpectreBlofeld]

The same is true with physical CDs, too. What's to stop you from ripping your disc to MP3's and then selling the disc?

If I were in the recording/movie business, I would start packaging other stuff with albums/movies to encourage purchase of the physical medium; posters, stickers, t-shirts, etc. All the money they're wasting on lobbying and lawsuits isn't going to do a damn thing to curb piracy.

This is worked on me before. A few years ago I bought the box set of Muse's 'The Resistance' because it came with:

"Multi format box set containing the following:
- CD+DVD in foldout softpak including The Making Of The Resistance DVD
- 180g Double heavyweight vinyl
- Muse USB pre-loaded with WAV, Apple Lossless and MP3 320 files plus bespoke audio player
- 12" Art Print"

Re:I don't see how you can prove uniqueness

[tehcyder]

Personally, I think a fair price for mp3's is under 10 cents these days.

Based on what, other than a sense of entitlement?

Re:I don't see how you can prove uniqueness

[FireFury03]

Sure, I can say that I deleted the Mp3, but how can I prove it?

I might have copies of it elsewhere, on memory sticks.

Personally, I think a fair price for mp3's is under 10 cents these days.
And I think when you actually go to the trouble of "buying" one, then you should be able to redownload it in the future.

The law isn't supposed to work on the presumption of guilt. If you sell a physical object, no one assumes you broke the law in order to acquire it - why doesn't the same apply to non-tangible goods, such as licences to listen to an MP3 (which, incidentally, is what is being sold; not the MP3 itself).

Re:I don't see how you can prove uniqueness

[Maxo-Texas]

Okay, let's set the foundation that I agree that any creator can price their product any way they want. If they want to price it at $10,000 that's their right.

My reasoning on the pricing of songs has several sources.

First, I think the current pricing level is disproportionately high. Consider J.K. Rowling earning a billion dollars for her books. If the price were a 10th, she still would have earned 100 million dollars. And some people would have bought books by other authors. High prices crowd out other artists.

Second, In a working capitalist system, when there was such a huge glut of content, the price should be dropping (and in some areas it is-- I've recently seen the start of DVD's with 4 good movies on them for five dollars). If our copyright worked the way it did before it was captured by the industry and ran out after 14 or 28 years, most of the content created by people who are dead would be much less than 10 cents.

Third, at $1, I think many people pirate content and get comfortable pirating content that they would buy at a lower price level. Admittedly 10 cents is an arbitrary figure and 15 cents or even 25 cents, more (and I think most) people would choose to buy over pirating. Even at 10 cents, it would take over $1000 to fill an ipod with songs.

Fourth, I think $1 per song is so high that many people who won't pirate don't purchase at all. It's also really a "first world" price. There is no way it is going to sell in a country where someone earns $400 a month.

Fifthly (and finally) And for some content, the companies legally sell their product for about 1/6th the price ($2.50 for a dvd that sells in the u.s. for $16). And that puts me at a basic disadvantage. Companies are increasingly hiring labor at 3rd world rates and selling their products to me at 1st world rates and to the labor at 3rd world rates. For example, my blood pressure medicine costs $5 per pill here without insurance and it costs 10 cents per pill in india. It's not a sustainable situation. At some point, the prices for goods must equal out- and if a good is sold in india or china for 1/5th the price, I should have access to the product for a similar price. It's a very artificial and unfair situation.

Re:I don't see how you can prove uniqueness

[isilrion]

Personally, I think a fair price for mp3's is under 10 cents these days.

Emphasised that for you. Why would you accuse him of a "sense of entitlement" or demand any other explanation for his thoughts? Do you think that every item that is being sold, is sold at a fair price? If you have ever seen the price of an item and thought "that's more expensive that it should be" (which, if I understand correctly, is one of the basis of capitalism, "vote with your wallet" and the like), you should ask your question to yourself first.

Re:I don't see how you can prove uniqueness

[Rob the Bold]

Personally, I think a fair price for mp3's is under 10 cents these days.

Based on what, other than a sense of entitlement?

Based on basic economics. The buyer wants to minimize the price he pays. There's nothing "entitled" about that. We're not talking about a lemonade stand here.

Re:I don't see how you can prove uniqueness

[Endo13]

Physical goods are much harder to copy for the average person. And many people won't even know that the license is what they're selling. Many of the ones who do won't care.

I'm not saying I agree with the judge, I'm saying I think copyright law is way outdated for what is possible today.

I'm also of the opinion that digital goods probably should not be resellable but in light of that, should be priced much lower.

I think the biggest problem though is that no one really knows exactly how the law applies here and that no one knows exactly what consumers are buying when they buy a digital copy of something.

Re:I don't see how you can prove uniqueness

[Anonymous Coward]

how about basic economics? In a competitive free market the price of a good will trend towards the marginal cost.

We all know the marginal cost of making a digital good is really, really close to 0 (and getting closer to 0 every year).
Consequently we also know that if the price of buying it isn't close to 0 we are being ripped of.

I actually think 10 cents is high under the circumstances.

Re:I don't see how you can prove uniqueness

[FireFury03]

Physical goods are much harder to copy for the average person.

Sticking a physical gizmo in your pocket and walking out of a store without paying for it is pretty easy, but selling physical gizmos is still legal because we don't usually assume everyone is guilty of committing a crime.

To be honest, if so many people are breaking a law that you have to assume everyone is always breaking it, its probably the law that's wrong, not the people...

I think the biggest problem though is that no one really knows exactly how the law applies here and that no one knows exactly what consumers are buying when they buy a digital copy of something.

Well the same is largely true when people buy physical CDs, DVDs, software, etc. largely because industry has done its best to muddy the waters - The media and software industries have long claimed that you don't buy these items - you buy a licence to use them instead. However, this falls somewhat short:
1. If you're buying a licence instead of the actual item, why won't they replace your item at a nominal cost if it gets damaged? (afterall, you are still licenced to use it).
2. When I go into a shop and pick up a CD, I go to the counter and say "I'd like to buy this CD", I'm not told that I can't buy it and get given a licence to sign instead; the cashier accepts my money and I walk out of the shop with a CD, having not signed any kind of licence.
3. When the latest movie comes out on DVD, the advertising says "Own this on DVD today!", not "Buy a limited licence to watch this movie in your own home today"
However, would I like to guarantee that a court would rule that I *own* a physical CD, DVD, etc? No I would not - the industry has muddied the waters so much, I no longer truely know what a court would say on the subject.

Re:I don't see how you can prove uniqueness

[NatasRevol]

Funniest thing about that $100,000 cable is the Ask a question section:

Typical questions asked about products:
  - Is this grill easy to clean?
  - Are the cushions in this patio set comfortable?
  - Is this lawn mower easy to maneuver?

Re:I don't see how you can prove uniqueness

[Endo13]

To be honest, if so many people are breaking a law that you have to assume everyone is always breaking it, its probably the law that's wrong, not the people...

Agreed 100%.

Re:I don't see how you can prove uniqueness

[mcgrew]

Based on what, other than a sense of entitlement?

Based on the costs born by the seller, which are practically zero. I agree with the GP that a dime would be reasonable for a digital file, which is why I buy physical media. iTunes is a ripoff and I refuse to do business with thieves.

Re:I don't see how you can prove uniqueness

[Fluffeh]

If I were in the recording/movie business, I would start packaging other stuff with albums/movies to encourage purchase of the physical medium

No offence, but this is why you aren't in the entertainment selling industry.

The things you listed all cost money to make. Then you have to distribute it to all the folks selling it. If you offer the products online, you have almost pure profit. Sure, you have to have a website, and you have to pay for bandwidth, but in reality, you have a pure profit business. You have infinite stock. You don't worry about refunds, stock control, your inventory is zero.

Add to that, the fact that courts are apparently siding with the entertainment industry, you can now also add to that the fact that users cannot resell (legally anyhow), so they *have* to buy from you.

Even assuming (which I don't personally agree with) that piracy reduces the number of sales, your profits are still pretty much 100%. It is simply a race to get as many sales as possible. Physical sales might be nice for a business, but if you want to increase profit margins, going online is the way to go.

Re:I don't see how you can prove uniqueness

[SpectreBlofeld]

No offence, but this is why you aren't in the entertainment selling industry.

  Well, maybe I should be.

Total revenue from U.S. music sales and licensing plunged to $6.3 billion in 2009, according to Forrester Research. In 1999, that revenue figure topped $14.6 billion. Probably not adjusted for inflation, too. And this is an older article - http://money.cnn.com/2010/02/02/news/companies/napster_music_industry/

Check out that chart.

The things you listed all cost money to make. Then you have to distribute it to all the folks selling it. If you offer the products online, you have almost pure profit. Sure, you have to have a website, and you have to pay for bandwidth, but in reality, you have a pure profit business. You have infinite stock. You don't worry about refunds, stock control, your inventory is zero.

  The way you put it, profits should be up! But they're not. They've been dropping fast and hard since the 'digital revolution'.

  I will argue that piracy has absolutely affected sales. Want a song or album? It's easy and costs nothing. If you're moral and want to get the song legally? You buy the song from iTunes or Amazon, who have to compete with piracy, and sell songs for very fucking cheap, really - a dollar or so per track. Your local bar's jukebox will cost you a dollar just to play the song once.

  What you fail to understand when you state that profits in digital distribution are 100% is the fact that sales are DOWN, and dramatically so. Once upon a time, in order to hear a song I liked on demand, I needed to own it. I would either buy the album, or a single, or have a taped/ripped copy from a friend. Now I can just fire up YouTube and play it any time I want. Why would I buy an album when I can listen to it anytime, anywhere, from any device that can access Youtube?

  What I am suggested is that, to maintain sales, labels/bands/whatever sell added services - extra shit you get for buying an album. Aside from posters and stickers and the like, what about concert ticket discounts with a purchase of an album? What about autographed copies?

  The alternative to this - bands will only be funded by Kickstarter and ticket sales, or otherwise have to resort to some sort of NPR pledge drive funding scheme. Or a national endowment of the arts. Enjoy your government-sponsored music.

Ah the perils of the media business model

[Anonymous Coward]

At one time artists had to perform to make a living. In the age of sound recording the artists and to a greater extent the businesses in the industry made piles and piles of cash, and they'd rather not see that go away. But the bottom line is that their goose is cooked so to speak, and it will lay no more golden eggs. For decades they've taken ~2 months worth of work and turned it into a lifelong revenue stream. Good work if you can get it. Don't get me wrong I realize the touring is hard, but there's also a lot of benefit too. Being able to travel the world, hookers and blow, multiple mansions across the country, etc All while maintaining the facade that they're there for the little guy. And most bands don't set up their own stuff. They've got a whole crew that sets them up and they come out and play for about an hour and a half like some amatures do after working all day at a real job. Seriously, they need to quit whining. While I don't agree with piracy I would say that the industry would be far better off embracing it than fighting it. For years record companies would pay radio stations to play their stuff so that people would hear it and go buy it. Imagine for a moment if the industry just said come listen to what we have to offer on the internet and posted it themselves. No more need for radio. The ability to reach a global audience. More money in touring, larger venues because a lot more people know about the artist now, more merchandice sales, and perhaps more phyisical media sales. I don't know about others, but I like to have an LP. Most of the new stuff I get these days I buy on LP, record into the computer at a high resolution, and if I want a portable copy I'll convert it to CD. New records don't have a lot of surface noise, and the signal to noise ratio is unsurpassed until you start talking about DVD-A. I'm probably the exception rather than the rule, but MP3s don't really get me excited about music. They ought to give them away as a teaser. They could have worked with Napster and wouldn't even need to host it themselves. Instead they started suing their customers and treating everyone purchasing music like they were the enemy. I think that's done far more damage than piracy ever could have.

Re:Ah the perils of the media business model

[MickyTheIdiot]

At one time artists

I stopped reading there. Anyone that brings "artists" into this discussion is bringing a record company-sponsored fallacy into the argument.

The discussions about copyright at this level have NOTHING to do with artists. Zero.

You might be right on the rest of the points, but you're conflating record companies and artists. It's exactly what the RIAA wants you to do and it's one of the things that has prevented smart discussion on music copyrights since the DAY that mp3 was invented.

Re:Ah the perils of the media business model

[Anonymous Coward]

Good thing you know you are an idiot. Thanks for saving me the effort of telling you.

Re:Ah the perils of the media business model

[tehcyder]

Anyone that brings "artists" into this discussion is bringing a record company-sponsored fallacy into the argument.

Bullshit. I get sick and tired of slashdot zealots who think that anyone who disagrees with them is a fucking paid shill.

I couldn't care less about record companies or artists owning private jets and stately homes. All I know is that artists need to get money from somewhere, and a lot of us aren't particularly interested in going to live concerts now that we're over 18. I don't see why the people paying to see the artist live should subsidise me by letting me pay nothing to listen to the music at home.

But yeah, obviously I must work for the RIAA to think that, because everyone either believes exactly the same things you do or they're wrong.

Re:Ah the perils of the media business model

[MickyTheIdiot]

Where did I call anyone a paid shill? I said it was pushing forward a RIAA-centered version of the argument.

I also don't care if record executives get paid... as LONG as the artist gets paid in a fair way. And that's the rub. The RIAA is pushing forward ideas that take care of the artists when they *don't*. They've spend around 100 years of the recording industry making sure they screw their artists.

I am all for the artist getting paid. I care about it a lot MORE than an RIAA middle man getting paid and I'm smart enough to know that the whine that the RIAA pushes forward about the artist are disingenuous.

Re:Ah the perils of the media business model

[MickyTheIdiot]

Ah.. I must of hit a nerve.

Re:Ah the perils of the media business model

[JeanCroix]

Do artists who've been dead for three+ decades still need to get money from somewhere as well?

Re:Ah the perils of the media business model

[cyber-vandal]

*Must have. Must of doesn't make any sense.

Re:Ah the perils of the media business model

[serviscope_minor]

Bullshit. I get sick and tired of slashdot zealots who think that anyone who disagrees with them is a fucking paid shill.

Wait what? The record companies have a long record of on the one hand whining about how the piracy is hurting the artists and on the other hand fucking the artists as hard as they can.

Many of us on slashdot are sick and tired of the lies and hipocracy spewed forth by the abhorrent organisations.

Re:Ah the perils of the media business model

[servognome]

Not sure about three+ decades, but 2Pac seems to keep producing new stuff.

Re:Ah the perils of the media business model

[Arrepiadd]

I couldn't care less about record companies or artists owning private jets and stately homes. All I know is that artists need to get money from somewhere...

And how much do artists* take in from the sales of their albums? If the labels are here to help the artists, then it's certainly a big share. But all I hear/read points in some other direction.

* When I say "artists, I'm not talking about U2, Britney Spears, Linkin' Park or any other big name, who basically have made all the money they'd ever need if they weren't wasting it in Ferraris, coke, or whatever. I'm talking about small bands who are starting their careers and make their first albums through a label. Those with basically no power to negotiate the terms with the label.

Re:Ah the perils of the media business model

[NatasRevol]

They don't have to negotiate with the labels.

There are more and more successful independent bands these days, thanks to a computer & software that does most of what the labels used to subsidize.

Now, they get to hit the road and just play & sell their own music.

Re:Ah the perils of the media business model

[bzipitidoo]

I don't see why the people paying to see the artist live should subsidise me by letting me pay nothing to listen to the music at home.

Then is it against your morals to listen to the radio? Or perhaps you consider radio paid because you have to listen to ads. You never surf to another station when an ad break comes, is that right?

Why do you talk as if the only way for artists to make money is live concerts or sales of copies of recordings? There are other ways, and they do work. The industry should have been working more on them in the 20 years since it became obvious that the ability to make copies was very democratic and both impossible and harmful to attempt to keep from the public. Instead, they have opted for this idiotic dead end of trying to deny copying to the public, and they've not been at all scrupulous about it. They've made idiots of themselves, again. This time, they've pushed this lost cause so hard and so long they've also made themselves into public enemies. Recall that they fought cassettes, VCRs, AM radio, and even player pianos. 100 years ago, they were actually opposed to copyright, fearing the cost and administrative overhead of securing rights to use various artists' work. Hollywood was set up on the west coast to get as far away as possible from the rights holders of Broadway, who were abusing their "rights" to make it difficult to employ the then new technology of film. Those rights were meant to ensure that artists receive compensation, not stop progress. Now the RIAA and MPAA are the crotchety, moralizing, hypocritical, senile, negative deniers of reality, sense, and progress. They're so afraid of losing what they never really had that they won't reach out and embrace a far richer world. That's okay. But they're also greedy, trying to prevent us from embracing it, and that's not okay. They want easy copying for themselves, and think they have a natural right to keep easy copying from the rest of us. They've done a good job of confusing the issues and the public, convincing many that if we don't stamp out piracy, the world of music will end. They're dinosaurs trying to pretend that the meteor never struck.

Re:Ah the perils of the media business model

[WGFCrafty]

Not sure about three+ decades, but 2Pac seems to keep producing new stuff.

That is because 2Pac isn't dead.

Re:Ah the perils of the media business model

[Arrepiadd]

And was it one of these independent artists that sued this company?

Re:Ah the perils of the media business model

[NatasRevol]

Thanks for following the conversation.

fuck media companies

[Anonymous Coward]

buy directly from artists.

Re:fuck media companies

[Anonymous Coward]

but I want music, not paintings!

Re:fuck media companies

[tehcyder]

I know everyone hates the media companies, but do you not think that there might be a very good reason why artists sign up with them rather than publishing/giving away everything directly?

It's not like anyone forces an artist to sign a recording contract.

Re:fuck media companies

[Lumpy]

Yes, you get a rock star treatment with empty promises and end up owing the record company. Do some research and find out how Record companies screw artists badly each and every time,

Musicians are not the smartest business men.

Re:fuck media companies

[Anonymous Coward]

good reason? before the internet days yes, you couldn't get exposure, let along world-wide exposure without it.

Post Internet? nope there's no longer any reason to sign the devil bargains that are industry standard contracts

Re:fuck media companies

[Anonymous Coward]

"Do you not think that there might be a very good reason why artists sign up with them rather than publishing/giving away everything directly"

well so far the aternatives are pretty grim if you want to sell music and dont want any middlemen involved,
it would be nice to even have a OSS shopping cart app for music that doesnt take a computing degree to install and maintain on an artists website.
There are plenty of websites all wanting their indefinite cut but not much help if you want to handle it yourself and actually cut out the middlemen/parasites

might as well sign with a label and let them deal with it all, right now with the lack of OSS/community support its probably the best option

A Judge has sided with the richer party

[rodrigoandrade]

It's easy to understand the judiciary. Whichever party has the most money wins.

Now where's my law degree?

Simple. Use CD-R Music CDs

[Anonymous Coward]

and then send the music to the new owner on that.

Let the music industry argue about how the royality fee they got with the CD-R Music was not enough.

Bad Implications...

[Anonymous Coward]

Reselling 'used' mp3s is a stupid idea to begin with, but I wouldn't be surprised this opens the door to making it illegal to resell physical music media. Just look what they're trying to do in the video game industry.

1st sale doctrine

[Anonymous Coward]

I don't understand why 1st sale doctrine can't be applied to digital content. The easily copied argument applies to CDs which only take a few minutes to copy. 1st sale doctrine applies to CDs. It seems that now that Capitol Records is on the digital media bandwagon, they want to change the rules. When will the insanity stop. Is the US going to take a step back into prosecuting people for witchcraft again?

Re:1st sale doctrine

[MickyTheIdiot]

It's going to take old fart judges dying and being replaced by judges born in the media age.

I think 90% of the problems with media law is coming from the fact that our lawmakers and judges are analogous to "clueless users" right now. It's going to take time for that to work itself out, especially with the level of pompous that is currently in our Congress and the courts.

Re:1st sale doctrine

[cpt kangarooski]

First sale allows people to resell legally made copies. A copy is defined in the statute as a material object in which a work is fixed. Thus, a file on a computer isn't a copy, but the hard drive the file is written to is. You're free to sell the hard drive with the music on it, but not to reproduce the file over the network, regardless of whether you delete the local file or not. Basically, you can't move a copy -- a hard disc, a flash drive, etc. across the net. It's physically impossible.

Re:1st sale doctrine

[Kjella]

So if there was a physical memory stick at ReDigi could I buy it, transfer my music to it (fair use?) then sell it to someone who'll transfer their music off it (fair use?) and sell the empty memory stick back to ReDigi? That way a "material object" changes hands, no distribution or reproduction is done as part of the sale itself.

Re:1st sale doctrine

[cpt kangarooski]

transfer my music to it (fair use?) then sell it to someone who'll transfer their music off it (fair use?)

This is the tricky part. Both transfers would have to be fair uses, both to avoid being infringing themselves, and also because only lawfully made copies are eligible for first sale.

A better solution from the legal standpoint IMO, although it does have a problem with people needing to use the service long before they plan on selling anything, is to have a small disk partition on a ReDigi server, just big enough for a single track, and to mount it as a disk on your local computer and download a newly legally purchased music file to it (each file you buy from iTunes or wherever would get its own partition). Then you need only sell access to the server. Would likely require some client software to handle the disk mounting in a way that kept things simple and tidy. Feels like a non starter to me.

Re:1st sale doctrine

[gnasher719]

I don't understand why 1st sale doctrine can't be applied to digital content. The easily copied argument applies to CDs which only take a few minutes to copy. 1st sale doctrine applies to CDs. It seems that now that Capitol Records is on the digital media bandwagon, they want to change the rules. When will the insanity stop. Is the US going to take a step back into prosecuting people for witchcraft again?

Someone said that people get more and more intelligent. I strongly disagree. First sale doctrine applies to the exact item that you buy. That's the basic and essential thing about the First Sale doctrine: It allows you to resell the exact item that you bought. But you cannot possibly sell the exact music file that you purchased. You can only sell a copy. That's why the first sale doctrine cannot possibly apply.

Re:1st sale doctrine

[Anonymous Coward]

talk about loop holes

I'd hate to be the dev to has to make that

Re:1st sale doctrine

[Kjella]

This is the tricky part. Both transfers would have to be fair uses, both to avoid being infringing themselves, and also because only lawfully made copies are eligible for first sale.

When I "buy" an AAC from say iTunes, it becomes a rather ordinary file on my HDD - is there any reason to think moving it around should not be considered fair use? If I need the copyright holder's permission to use copy-paste, we're well and truly screwed.

Re:1st sale doctrine

[cpt kangarooski]

When I "buy" an AAC from say iTunes, it becomes a rather ordinary file on my HDD - is there any reason to think moving it around should not be considered fair use? If I need the copyright holder's permission to use copy-paste, we're well and truly screwed.

Well, circumstances matter a lot in fair use. Here's what the court had to say with regard to ReDigi:

On the record before it, the Court has little difficulty concluding that ReDigiâ(TM)s reproduction and distribution of Capitolâ(TM)s copyrighted works falls well outside the fair use defense. ReDigi obliquely argues that uploading to and downloading from the Cloud Locker for storage and personal use are protected fair use.7 (See ReDigi Mem. 15.) Significantly, Capitol does not contest that claim. (See Tr. 12:8-23.) Instead, Capitol asserts only that uploading to and downloading from the Cloud Locker incident to sale fall outside the ambit of fair use. The Court agrees.

The analysis of the first three fair use factors is straightforward and against ReDigi, as was obvious, so well skip to the fourth factor:

Finally, ReDigiâ(TM)s sales are likely to undercut the âoemarket for or value of the copyrighted workâ and, accordingly, the fourth factor cuts against a finding of fair use. Cf. Arista Records, LLC v. Doe 3, 604 F.3d at 124 (rejecting application of fair use to P2P file sharing, in part, because âoethe likely detrimental effect of file-sharing on the value of copyrighted compositions is well documented.â (citing Metro-Goldwyn- Mayer Studios Inc. v. Grokster, Ltd., 545 U.S. 913, 923 (2005)). The product sold in ReDigiâ(TM)s secondary market is indistinguishable from that sold in the legitimate primary market save for its lower price. The clear inference is that ReDigi will divert buyers away from that primary market. ReDigi incredibly argues that Capitol is preempted from making a market- based argument because Capitol itself condones downloading of its works on iTunes. (ReDigi Mem. 18.) Of course, Capitol, as copyright owner, does not forfeit its right to claim copyright infringement merely because it permits certain uses of its works. This argument, too, is therefore unavailing.
In sum, ReDigi facilitates and profits from the sale of copyrighted commercial recordings, transferred in their entirety, with a likely detrimental impact on the primary market for these goods. Accordingly, the Court concludes that the fair use defense does not permit ReDigiâ(TM)s users to upload and download files to and from the Cloud Locker incident to sale.

Could work...

[Anonymous Coward]

This could work, and I had actually thought about it as a business, however, it could exist legally if there was effective DRM of the media you try to resale. Thus you could unlicense and relicense the same file.

Digital vs. Physical

[Registered Coward v2]

This will be an interesting case to follow, with possible consequences for reselling other digital goods like games.

One of the key points seemed to be that no physical good was exchanged; so a DVD version of the game would be re-salable under TDoFS but a digital version such as from Steam or iTunes would not be. the judge said that because the transfer involved copying a file it was infringing; whereas a physical version form teh copyright owner would not.

Interestingly, a strong DRM system that ensured only 1 person could use the item might not infringe since you could transfer the key w/o copying the file. A service such as Steam could then provide a new licensed copy of the file and prevent the original key holder form using the game.

Re:Digital vs. Physical

[Githaron]

I don't see why the transfer would not be legitimate regardless of whether or not the original owner can illegally use the media after-the-fact. A user can buy a CD, copy the contents to their hard drive, and then resell the CD. That sale would be completely legitimate and legal and the buyer would be in the clear. If the original owner went back and actually used the copied files, then the original owner would be breaking the law because they have already transferred their license but the sale would still be legitimate and legal. Why not treat digital goods the same way?

Re:Digital vs. Physical

[Registered Coward v2]

I don't see why the transfer would not be legitimate regardless of whether or not the original owner can illegally use the media after-the-fact. A user can buy a CD, copy the contents to their hard drive, and then resell the CD. That sale would be completely legitimate and legal and the buyer would be in the clear. If the original owner went back and actually used the copied files, then the original owner would be breaking the law because they have already transferred their license but the sale would still be legitimate and legal. Why not treat digital goods the same way?

While I agree with you, it appears because of the law specifically addressing copying and the the rights of copyright holders to control it digital is treated differently. Essentially in one case a physical good changes hands and in the second a copy is made. I guess it could be argued that someone could buy the song, put it in cloud storage, and transfer the access rights to a third party since no "copy" is made.

Don't worry

[RDW]

Reselling media is only evil and wrong this week. It'll be absolutely fine, 'innovative' and mainstream as soon as Amazon, Apple or Google starts doing it:

http://www.zdnet.com/amazon-lands-patent-on-marketplace-for-selling-on-used-digital-content-7000010917/

http://appleinsider.com/articles/13/03/07/apples-digital-content-resale-and-loan-system-could-allow-drm-transfers-between-end-users

Metaphysical confusion

[srussia]

The object of copyright is referred to a 'work'. I have not been able to find a coherent definition of a 'work'.

Is it a physical thing? Is it an immaterial form? Is it a sequence of bits?

Re:Metaphysical confusion

[cpghost]

Is it a physical thing? Is it an immaterial form? Is it a sequence of bits?

Mathematically, an MP3 file is nothing more than a BIG number. Nothing more, nothing less.

Think about this carefully. A couple of years ago, before someone invented the MP3 format, that very same number would have been nothing but a big number without any significance. It would have been uncopyrightable. In a couple of centuries, when the MP3 format would have become forgotten, that very same number would again become uncopyrightable, even with perpetual copyright, because it would have become meaningless (again).

Re:Metaphysical confusion

[srussia]

Mathematically, an MP3 file is nothing more than a BIG number. Nothing more, nothing less.

You'll get no argument here from me. In fact, an arbitrarily large number of other big numbers (different MP3 encodings) would be considered the same song by a layman.

What I am looking for is a legal definition of 'work' in the context of copyright.

The US Copyright Office is mute on this question. In fact it begs the question, giving the following circular definituon of 'work for hire' (http://www.copyright.gov/help/faq/faq-definitions.html):
"The exception is a work made for hire, which is a work prepared by an employee within the scope of his or her employment or a work specially ordered or commissioned in certain specified circumstances."

No one has been asking this question, at least until now: http://madisonian.net/2013/03/20/kirtsaeng-what-is-a-work/

Fight the power

[Anonymous Coward]

Just challenge the resale of licenses, then.

Judge was paid off!!

[Anonymous Coward]

This is why people steal music and movies instead of purchasing them. Screw Me, No Screw You!

Re:Judge was paid off!!

[gl4ss]

This is why people steal music and movies instead of purchasing them. Screw Me, No Screw You!

I thought this was a case of people not purchasing music since they're not sold music despite it being labeled as "buy now", "buy on blablastore" "available for purchase on shittunes"... the judge should have gone the case by the way of how it is advertised since it's a consumer case and not by the small print comicbook joke eulas.

I don't see resale working4digital media w/o drm

[gravis777]

The problem is that you never had physical posession of the work. As its digital, you can make a perfect copy. What is to stop someone from downloading a ton of MP3s from some file-sharing site, then trying to sell them on a place like this? What is to stop you from buying music on amazon or itunes or having a streaming subscription to Rhapsody, taking the files, using the analogue hole, saving as an mp3, selling on the site, and still keeping your original files?

The only way that you could resale digital media is if it was DRMed, and in that case, the company would have to allow you to deauthorize your machine and pass it on to someone else, but even still, you can convert to another DRM free format in many cases, which, once again, allows you to keep a copy.

I can't see how the First Sale Doctorine would apply to this case. You HAVE to have some type of physical media for first sales doctorine to be able to apply, otherwise there is no way to really track if something is pirated or not.

Although I guess you could argue that I could make a copy of a DVD or CD or something, but its not in the original case with the original cover with the original pressing, so the copy really has no value.

So in conclusion

[Anonymous Coward]

So the lesson is that any digital licensed "good" should be REQUIRED to come with a physical copy of a license, that can then be transfered using the first sale doctrine?

The cost of limiting the copy

[jcdr]

Aside of the strict legal blablabla, the future will be limited by the increase of the cost of controlling and hunting the copy. Because the privacy will always be a sensitive subject, there is no way for a simple system to control any possible copy. The situation will be more and more complex, and so will be the tools that try to search something. And complex tools cots a lot. Who will pay for it ? Yes, the customer. At one point at one point of cost, others business models will be more profitable for the artists than obliterate a lot of money in making potential customers angry.

Workers rights vs IP owners rights

[Anonymous Coward]

If technology makes a workers job obsolete, he is forced to go back to school and adapt or take a pay cut. If he tries to form a union the courts block him.

If technology makes an IP owners business model obsolete, he forms a lobbying group and the courts happily cripple technology and innovation for him so he can maintain his status quo.

Re:Workers rights vs IP owners rights

[GLMDesigns]

Two wrongs don't make a right. Forming a union to prevent competition is wrong - at this point you (the union member) are the aggressor. This issue (selling digital media) will go through the court system many, many times before becoming settled law. I, as with most here, think that reselling digital media is normal and acceptable behavior and no different than selling "used" books.

I cannot see the "license" argument winning the day. It didn't apply to intellectual property pre-digital age (books, music) and there isn't anything "new" about digital media except for the ability to easily make copies.

Re:Workers rights vs IP owners rights

[Anonymous Coward]

Forming a union to prevent competition is wrong - at this point you (the union member) are the aggressor.

How is that aggression? A union only requires free association and the right to refuse service, neither or which are aggressive.

Re:Workers rights vs IP owners rights

[petermgreen]

Copyright is based on the principle that the copy sold to you (hereafter "the original") is legally different from copies you make yourself (under fair use or whatever the country you are in calls similar provisions). AIUI in most places you can resell the original but you can't resell your copies of it and depending on your country you may be required to destroy your copies of it before reselling the original.

What is "new" is that they are no longer making a copy and selling it to you*. They are transmitting the information to you on request and then you are making a copy based on that transmitted information. Laws neeed to be updated to handle this case but until they are courts will have to try and interpret the letter and/or spirit of an old law in a case it doesn't really fit..

* This isn't strictly related to it being digitial. CDs, DVDs etc are digitial and yet are physical media and one could concieve of a system where media was sold over an analog phone network for users to record.

Re:Workers rights vs IP owners rights

[GLMDesigns]

You make an interesting points re the fair use and that one cannot legally sell copies. As with most problems digital I think there needs to be a digital solution. One purchases a copy (hereafter "the original") which comes with a digital signature and an impediment to replicating. I say impediment as there is no way (that I know of) to absolutely prevent copying. This impediment is a legal barrier. The act of circumventing the barrier is the criminal act.

The average person can buy a piece of music, an ebook, etc... and sell it or loan it to another as he would a vinyl record or paper book; that action remains the same as with the pre-digital world. The act of circumventing the legal barrier to copying and especially the act of removing/altering the digital signature from copies would be illegal and punishable by listening to the Barney theme song 16 hours a day for 20 years, or some otherwise deemed suitable punishment.

Re:Workers rights vs IP owners rights

[petermgreen]

The problem is short of doing really screwy things to the users computer there is no real way to let users easilly move something arround without letting them easilly copy it.

Fundamental Misconception

[Anonymous Coward]

This Judge seems to have a fundamental misconception as to how computers work. Whenever you "move" a file it first copies the file and the deletes the original. As others have noted even simple processes like playing the file will reproduce, uncompress & run simple conversions on audio files to make it usable by the computer. This ruling could, in theory, outlaw all kinds of reasonable activities. From simply playing your MP3's to moving from an older PC to a new one.

No one said to the judge

[Anonymous Coward]

Judge explain to me how and MP3 is different than a tape or record dont look at anyone in your own words.

Why doesn't he move the business to Europe?

[Viewsonic]

They just passed a law that allows everything to be resold. Music, DLC, Online Games, Operating Systems that come "tied" to systems. They are all allowed to be resold. Licensed or not, they are allowed to be resold. This guy should just move his business there and be protected under EU law.

catch me suckers

[Anonymous Coward]

no really try and catch me
time to gt the baseball bats out kids and start beating the man over the head for stupid laws....remember if your in jail your not paying taxes.....

3D printing now prohibits resell of worldly goods

[Anonymous Coward]

If not being sure if the "origional" (which is actually a copy too!) is destroyed can be used to negate the first-sale doctrine, I wonder how long it will take to prohibit the re-sell of, lets for the moment say, figurines, because 3D-prints of the same could be created before the sale (Assuming 3D-copies look the same as the origional ofcourse).

Or maybe that does not matter, and the seller is happy with its copy and he really does sell the origional.

Just a thought ...

Purchase

[phorm]

Then maybe they should stop using the word "purchase" and instead use the word "license".
Ditto for digital game "sales"

What about...

[Dcnjoe60]

If I can't sell them, can I just give them away when I am done with them?

Re:What about...

[CanEHdian]

If I can't sell them, can I just give them away when I am done with them?

No, since you are the licensee. And your kids cannot inherit them since the license is not transferable. Why do you think there are all these calls to action? The Media Industry is very effective at a divide and conquer strategy, but as soon as there is going to be unification of all these little groups/platforms, and they are going to be effective at informing the large, uninformed public, oh boy.

Studio/Customers Disconnect

[Blindman]

This is just another example of the disconnect between the studios and their customers. Studios believe that they are selling a license but customers believe that they are buying a product. The studios don't want to be explicit about this because they know that customers would revolt. That is why they work behind the scenes (a court case is behind the scenes for most people) to impose their view of the world without making an announcement. Customers won't like it at first, but eventually people will learn to adjust. However, as part of that new paradigm, studios should provide a free backup service so that the media travels with the person and not a particular downloaded copy.

This being said, I have no idea how someone can generally sell an mp3 in the traditional sense absent some sort of registry system. In theory, if I delete my copy of an mp3 before "selling" it to someone else that has the same character as selling a CD. However, there is no way to know if I actually deleted my copy absent some sort of ownership registry. Selling a CD has that same problem because there is no way to know if someone made a digital copy before selling the physical media. However, that is an enforcement problem and not necessarily a copyright problem assuming that everyone follows the rules.

No different from used CDs.

[Anonymous Coward]

Or used books. Or used software. Or ...

The person selling who then uses the MP3 file after selling is committing copyright infringement. Until that happens, no copyright infringement has taken place.

Apple iTunes are doing the same thing as allofmp3.

[Anonymous Coward]

However, Apple are getting away with it because they're

a) bigger
b) USA

Under copyright law you're wrong.

[Anonymous Coward]

A copy required for the use of the work as intended is not a copy controlled by copyright.

Re:Under copyright law you're wrong.

[Defenestrar]

So, do you think the work was intended to be re-sold? If not, then by your own argument the copyright holder does have the right to deny copying for that purpose.

Re:Under copyright law you're wrong.

[Zordak]

You're thinking of 17 U.S.C. 117(a), which I already mentioned. It's limited to computer programs. And I don't see how making a copy to sell to other people is "required for the use of the work."

Re:Under copyright law you're wrong.

[Zastai]

The whole point of the first sale doctrine is that the original seller is not entitled to any special consideration once the sale completes.
So whether something was "intended to be resold" is irrelevant - you sold it to me, so I can resell it without your permission.

I also see arguments based around "copying" as being what copyright is about; it's not - distribution is what it is about.
Reselling is about transfer of ownership, not distribution. That on the technical level this transfer of ownership consists of a copy followed by a delete, should not matter - when the operation completes, there is only 1 file, so there no "copy" took place.

Re:Under copyright law you're wrong.

[bdwebb]

A copy of the work was made to allow the purchaser to download it in the first place, hence the reason it is required for the use of the work. The copyright owner can copy it as many times as they want perfectly legally but as soon as it changes hands and the copy of the work is authorized for the use of the purchaser. If that copy is not able to be resold as a standard good under the doctrine of First Sale, technically nothing that anyone purchases should be allowed to be resold as the original design was copied and replicated en masse for resale in the same way as an MP3 is, albeit with much more work involved and typically a much lower profit margin.

Technically you can argue that the physical structure at the molecular level is different in each of the physical products, but if the molecular structure of the product is the key, then I can replicate and resell anything on the market without fear of repercussions. Ultimately just because MP3s are more easy to copy doesn't make them ineligible for First Sale protections. It is not the onus of the purchaser to ensure the product can't be easily copied, it is their responsibility only to legally purchase the product for personal use and, in the event that they wish to resell said product, transer ownership to the new purchaser legally under First Sale. With regard to digital sales, as long as the product is no longer usable or copyable by the original purchaser, I don't see a single bit of difference.

The copyright owner cannot be the owner of the files in question unless it is designated as a rental and sold as such. If they do not own the copy of the original that they sold, the purchaser owns that file or files and can therefore transfer that ownership to whomever they want.

Re:Under copyright law you're wrong.

[Zordak]

technically nothing that anyone purchases should be allowed to be resold as the original design was copied and replicated en masse for resale in the same way as an MP3 is, albeit with much more work involved and typically a much lower profit margin.

All of those copies were authorized by the copyright holder. Once a copy is delivered to you, you are not authorized to make additional copies.

Technically you can argue that the physical structure at the molecular level is different in each of the physical products, but if the molecular structure of the product is the key, then I can replicate and resell anything on the market without fear of repercussions. Ultimately just because MP3s are more easy to copy doesn't make them ineligible for First Sale protections.

Sure, if you sell the physical disk that the MP3 was originally delivered to. But if you make a copy from that disk to another disk, you have copied without authorization. It's the same as if I buy sheet music. I can sell that sheet music if I want, but I'm not entitled to photocopy it and deliver the photocopy to another person, even if I destroy the original. There are some exceptions like fair use, which is why libraries have copiers, but the baseline rule of copyright is that you cannot make any copies without authorization.

Re:Under copyright law you're wrong.

[black3d]

I spent some time yesterday reading the findings in full, and the courts ruling is compliant with copyright law. The issue is that copyright law is out of date, but that's not the courts responsibility, necessarily. Take that to the Supreme Court. You're allowed to make a copy to use it (fair use) such as loading into memory, putting onto your MP3 player, etc. In fact, Capitol Records didn't even contest that a user is allowed to upload a copy to a third party service in order to access it for personal use (ie, a cloud storage locker). What they contested was that if you then try to sell that reproduced version of the file (which, under copyright law, it is - it's a reproduced version even if the original doesn't remain anymore), then that copy falls outside the bounds of fair use and becomes an illegal copy at which stage it can't be sold. In other words, it's the act of trying to sell it which makes it an illegal copy.

This is clearly a case where copyright law needs to be updated. Under the ruling, the only way to sell an MP3 is to sell the computer you first downloaded it on, and include the MP3 with it. According to the ruling, technically, even putting it onto a disk and selling the disk is a breach, although it'd be very difficult for anyone to prove you didn't first download it to the disk - although if they had reason to believe you didn't (ie, sitting in a stall selling CDs with MP3s that you say you purchased legally) a warrant would quickly sort that out.

It feels like what's needed is an open, distributed form of DRM which doesn't rely on static servers, and where the rights assigned to the file can be changed at the whim of the user, not a third party. And copyright law updated to reflect the nature of our digital world.

Re:Under copyright law you're wrong.

[AlamedaStone]

Or we could embrace the coming stuffpocalypse in which all physical goods can be reproduced at home (essentially) for free and start thinking bigger as a species. Consumerism is fun, don't get me wrong, but it's just a blip and we have a lot of work to do.

Re:Under copyright law you're wrong.

[AK Marc]

No, you are allowed to record it on any media for the purpose of playback. If that recording is on a USB stick, then you sell that USB stick, then that is a legal transfer. The work is intended to be re-sold, as it was called a "sale" not a "rental" so it's obvious it was intended to be sold, or at least the lie of "resale" was passed to convince us that it was a sale, so that we wouldn't revolt over the revolting offering. But, now that they call it a "sale" they are legally arguing in court that it wasn't a "sale".

Re:Under copyright law you're wrong.

[AK Marc]

And I don't see how making a copy to sell to other people is "required for the use of the work."

They owned it. They offered it up for trade. If I give then $0.99, they "sell" me an MP3. If it's a sale, they lose all claim to it once they take my money. If it's a limited rental of a limited license, then they committed fraud. They argue both in court, depending on the opposition claims. The "issue" is that they are claiming it is both a sale and a license, but the license wasn't sold so it can't be transferred, but it was a "sale" in that they have no responsibility for the upkeep of the license rental.

If it's "sold" then re-selling it is a required feature of using it (otherwise it wasn't a sale), so copying it to sell is necessary for the work to be used as sold.

Re:Under copyright law you're wrong.

[AK Marc]

All of those copies were authorized by the copyright holder. Once a copy is delivered to you, you are not authorized to make additional copies.

So you are asserting it is illegal to download an MP3 from Amazon, then copy it onto their MP3 player to listen to it.

That seems to be the opposite of every ruling I've read, even those where the copier loses. I'm not sure how serious to take the rest of your comments, when you hold that makeing a copy on a portable device for personal use is illegal.

the baseline rule of copyright is that you cannot make any copies without authorization.

"Copyright" was the name assigned to exclusive distribution. The fact it includes "copy" in the name seems to trip up lots of people. Copying is only covered because it's considered a precursor to distribution.

Re:Under copyright law you're wrong.

[Zordak]

So you are asserting it is illegal to download an MP3 from Amazon, then copy it onto their MP3 player to listen to it.

Yes, unless an exception applies. Moving it to a portable device is now a pretty well-established exception, but it wasn't always so.

"Copyright" was the name assigned to exclusive distribution.

No, "Copyright" was the name assigned to the exclusive right to copy. Please read 17 U.S.C. 106. The very first exclusive right enumerated is the exclusive right to make copies. Distribution is third. At its core, copyright is about copying. I'm not sure how serious to take the rest of your comments when you have this fundamental misunderstanding of the underpinnings of copyright law.

Re:Under copyright law you're wrong.

[Zordak]

If it's "sold" then re-selling it is a required feature of using it (otherwise it wasn't a sale), so copying it to sell is necessary for the work to be used as sold.

If it's "sold," then certainly you can sell the physical disk on which the authorized copy you received resides. The right to make an additional copy is not necessary to re-sell. It just makes re-selling more convenient to you, and unless and until there is a copyright exception for this, it's a violation. Maybe the law would be better if it permitted copying to re-sell, but that's not the way it is now, and I'm not sure it would be better that way anyway. A primary feature of "reselling" is that the original owner gives up the goods he is reselling. That's hard to police without very strong DRM, which I'm pretty sure Slashdotters adamantly oppose. As Slashdotters are fond of parroting, digital is a new world that needs new rules. If you want DRM-free media, giving up resell rights may be the cost. I personally think it's a fair tradeoff. Give me inexpensive, easily-accessible and unencumbered media that I can use without hassle (like plain MP3s at 256k for $0.99 to $1.29), and I'm willing to give up the right to resell them. On the other hand, I don't buy digital books because I want a physical thing on my shelf that I can pass on to my children if I choose. So for me at least, the tradeoff isn't worth it for books.

Re:Under copyright law you're wrong.

[AK Marc]

Moving it to a portable device is now a pretty well-established exception, but it wasn't always so.

Can you point me to the "exemption" that proves that right? If it isn't coded in law, it isn't an "exception" that makes it legal. It's a ruling that could be overturned tomorrow. Especially if it's a an opinion of an interpretation of a vague law like "fair use" that's getting smaller and weaker every ruling.

Re:Under copyright law you're wrong.

[Anonymous Coward]

I agree with your anaylsis except for the DRM part. While DRM might convince major mp3 distributors to allow a form a resale through licensing, it would still remain prohibited in general under copyright law. The problem I see with this ruling is that it gets too bogged down in the technical different between transfering a digital file and a physical CD. Yes, in order to "move" a digital file, it must be copied and then deleted in it's original location. No way around that. But examining the "moved" file shows that it's exactly the same so a common sense approch would not consider that a copy has technically been made. It should only be considered a copy if the file remains in it's original location (copied not moved). In my opinion, allowing for what every computer user calls moving a file to be actually treated as a move for copyright purposes would solve all the problems with this and a handfull of previous cases.

To show how the courts overly-technical analysis fails ad absurdum, consider this example. Since digital files are stored as 1s and 0s, every DVD is likely to contain large strings of data that are exactly the same as prior DVDs. Therefore, every new DVD infringes on the copyright of prior DVDs. The current case law says that there is no "de minimis" defense for infringement meaning that it's infringment no matter how small of a portion is copied.

Re:Under copyright law you're wrong.

[Anonymous Coward]

If you agree to a click-through license then that can be another way to get around first sale. I've not used iTunes but if it's like most other software, there could be something embedded in that license that could legally add additinal restrictions onto the music sale. Of couse there may be ways around this such as having someone under 18 install and use the software since they can't legally enter into a licensing agreement.

As others have said, you could still sell the mp3s by offering them for sale as part of the hard drive which they were orignally downloaded to. You just aren't allowed to resell them by digital transfer.

Digital products are for suckers.

[Anonymous Coward]

Why someone would buy a digital product is beyond me. Youre buying nothing. You purchase something you cant lend to a friend, sell, trade in, put on ebay or put in the closet to pull out again in 20 years. You don't actually own a digital product.

Granted I have bought 4 or 5 songs off amazon for like 99 cents each but I wouldn't buy entire albums, video games or programs or movies digitally. Its a waste of money that only appeals to impatient customers who cant wait a extra couple of days for something and only care about "right now".

flac

[Anonymous Coward]

Good thing I ripped all my music into flac, so I can share it freely!

Gov't = not your Mommy

[CanEHdian]

When you were a kid, your parents made the rules and you just had to live by them.

That is not the case in a democracy. Stop thinking about it in a "government knows best", "the rules are the rules", and "I must always obey authorities" way.

If you think you SHOULD be able to sell, or let your kids inherit, your digital music files, and current laws will not allow it, GET THE LAW CHANGED. It's really as simple as that. Rules aren't really there to be broken, but rules are there to be changed with changing circumstances. The circumstances need not change based on the rules if a large majority considers the new circumstances more desirable than the previous ones.

The only PROBLEM is how to get this done. Current legislative and political environments favour Big Business... but a grassroots campaign supported by alternate (I should say: re-purposed) large-scale media can still work, see SOPA/PIPA.

QUIT BUYING THIS SHIT!

[AndyKron]

Quit buying shit from these bastards. I don't.

Used Music

[Anonymous Coward]

Just "borrow" a music cd from your local public library.

Legal contracts aren't always legal

[RebootMB]

One thing that I haven't seen discussed is if the lawyers for the music industry have overstepped purchasers' legal rights. Just because iTunes, Amazon or Capitol Records' legally drafted EULAs say a person can't do this doesn't mean that's all there is to it. Remember the EULAs that used to be included in software boxes that said once you open the box, you can't return it. In this case, even though it was a legally drafted contract, it took away the purchasers' rights because it was hidden from the user. In this case, it's going to be up to the judges (assuming there will be appeals) to try and find if/how the contracts adhere to the law.

used CD prices are VERY low!

[rjnagle]

I know you may say that CD prices are expensive based on what new CDs sell for.

But go back to say 2004 and earlier, and you will find for the most part the cost of CDs is practically nothing. You can buy 90% of CDs for $2 or less (plus shipping).

Most of the time, you can buy a CD for $1 or less.

For most part, prices of old CDs are still cheaper than mp3s of these albums.

Can't MP3s be tampered?

[antdude]

You can edit/modify their idtags, change pictures, etc. it won't be like the original. :O

Easy way to circumvent this ruling

[Cyfun]

If we can't resell MP3s, simply change the file extension, or convert it to another format. Then it's not an MP3 anymore! Why hasn't anyone thought of this?

Re:Apple iTunes are doing the same thing as allofm

[TheRaven64]

No, Apple is selling tracks after negotiating a license with the labels. Allofmp3 was selling tracks under a loophole in Russian law that was intended for radio. Apple tries to make sure that you can't use a store outside of a jurisdiction where they have licensed the music (e.g. using the US store from the UK). It is possible to buy iTunes gift vouchers online from third parties to bypass this, but Apple can at least claim that they are attempting to try avoid it. In contrast, allofmp3 had a site in English, even though that wasn't the official language anywhere where they had a license to distribute music, and took credit cards from anywhere.

books?

[AndyKron]

What about all the books found in used book stores? Sounds like a double standard to me. Sounds like the typical bullshit we have to put up with in the "free" country.

This is no way surprising, period

[the_quark]

This decision is in no way surprising to anyone who knows copyright law. US Copyright law *explicitly* states that you do not have a right to resell digital copies, and if those guys had a lawyer advising them on their business when they set it up, they should be suing him for malpractice now. Look up "First Sale Doctrine" if you're having trouble sleeping.

If you're a cynic (as I am) this is evidence of the ridiculous influence of copyright owners on Washington.

However, there is *some* rational for this - if you buy a CD and then sell it to someone else, no new copies have been made. But, if you buy an MP3, and then sell it to someone else, to do so, you must make a copy. Which means you're now in copyright territory, since you're selling a copy of the work without the author's permission.

Now, personally speaking, I think if you're going to certify your copy has been destroyed, this shouldn't be a problem - but that's the law, now, and has been for more than a decade (maybe longer, I started paying attention when I was at EMusic ca. 1998).

Re:Apple iTunes are doing the same thing as allofm

[Xest]

You're right about Apple, but FWIW there are a number of US companies who do things that are legal in the US, but illegal in Europe and for some reason get away with it.

It's usually to do with privacy, and whilst some companies who are victims of millions of pounds of Microsoft lobbying for punishment in the EP like Google get rapped for it, others like Facebook who have very clearly broken the Data Protection Act in the UK (and equivalent in many European countries) continue to get away with it. For example, Facebook opted my account in to allowing friends to allow 3rd parties to access friends data (hence my data). This is a clear breach of the DPA as the only person who can authorise these 3rd parties to access my data is me, no one else can do it on my behalf.

I contacted the ICO over it and they simply didn't care, yet when I contacted them about a fairly large European recruitment agency illegaly selling on my CV they dealt with it within days - there's clearly a disparity between how they treat European companies and US companies in this area at least.

Missing the point

[Anonymous Coward]

The judge is missing the point.

Users don't buy mp3 files they buy licenses to play mp3 files.

The first sale doctrine should mean that anyone is free to resell the license to use.