News - US Federal court delivers blow to digital music resales

[Saracen]

A classic case of 'you can have your cake and eat it too!' by the music companies.

Or, a classic case of courts agreeing with music companies that consumers can't have their MP3s, and sell them.

It comes down to this. You can buy a book, or a CD, and then, later, sell it, but you cannot (legally) sell a copy. When you sell the CD, you sell the original copy that you bought, that being the physical media, and the rights to use that to play, in restricted circumstances, the music on it.

But when you "sell" an MP3 through a service like this, you are selling a copy, and an identical copy at that, and then, in theory, deleting the original as part of the process. And, in theory, didn't keep a copy somewhere else when you did the sale transaction.

And copyright law precludes unauthorised copies, unless a fair use exemption applies.

[shaithis]

It comes down to this. You can buy a book, or a CD, and then, later, sell it, but you cannot (legally) sell a copy. When you sell the CD, you sell the original copy that you bought, that being the physical media, and the rights to use that to play, in restricted circumstances, the music on it.

The "original copy"....and therein lies the problem with these laws. Even buying a CD or DVD in a shop, you are not buying an "original", else we could call all prints of famous artworks originals. The laws are antiquated and completely out of touch with the way the markets are working.

There is absolutely no defense what-so-ever for disallowing the re-sale of digital downloads, without questioning the validity of all second-hand sales....and I mean ALL second hand sales. From software to cars and everything in-between.....and to further reinforce that....if the defense is "you can make a copy", well, there are these things called 3d printers now..........

[Saracen]

The "original copy"....and therein lies the problem with these laws. Even buying a CD or DVD in a shop, you are not buying an "original", else we could call all prints of famous artworks originals. The laws are antiquated and completely out of touch with the way the markets are working.

There is absolutely no defense what-so-ever for disallowing the re-sale of digital downloads, without questioning the validity of all second-hand sales....and I mean ALL second hand sales. From software to cars and everything in-between.....and to further reinforce that....if the defense is "you can make a copy", well, there are these things called 3d printers now..........

The "original" copy is the one you bought, not the master. So in a CD, however bought, the original is the CD, and if you sell it, that's what you sell. If you sell the MP3, the one you sell simply isn't the one you bought. The original is, if you like, the copy authorised by the rights holder. If an artist sells 100 authorised prints, each is original. If you copy one, it's unauthorised, and therefore copyright infringement, unless you either gave permission, or fair use applies.

As for the law not keeping up with markets, or technology, I rather agree. So did the court. But their point, as I said earlier, is that their role is to interpret and apply law, not create new law. That, is for lawmakers. And until it happens, they have to apply law as it is, not make it up because they think it's better, or as they think it ought to be.

I had that conversation with a very senior UK judge some years back, and one renowned for, erm, "creative" interpretations at that, but even he said as a judge, he has to apply law as it is, not as he'd like it to be, and that judgments had to apply law, not his idea of justice.

[ty2010]

What happens to Itunes accounts when people die?

[Saracen]

@shaithis

Further to my comment above, the "original copy" I referred to is the original legally made copy, when you purchased a download, or presumably, one legally made under the terms of whatever licence you got when downloading, like with iTunes.

In the case of a book or CD, that copy is "fixed" in the material of the paper of the book or plastic (etc) of the CD. You can therefore sell or give away that "fixed" copy, but that "fixed" copy is the one that is "original", I.e. lawfully made.

What you cannot do is to photocopy copy the book and sell the copy, even if you then burn the book, or rip an audio copy of the music on the CD and sell it, even if you then destroy the CD.

Similarly, as I understand it, copies of digital files may only be made, or transferred, in accordance with the licence under which you acquired the file, which effectively means that you could sell an iPod or Kindle with digital files "fixed' on it, but not transfer them off it other than as permitted by the licence.

Which brings me to ....

@ty2010.

As I understand it, and I'm not a lawyer (or an iTunes user), an iTunes account is personal, and cannot be transferred. The iTunes T&C do not deal with this explicitly, but they do stipulate that :-

[a] you keep account details, including password, secure and private
[b] any breach of the agreement, (including, presumably, [a] above) gives them the right to terminate the account.

The inference would seem to be that the deaceased's will could duspise of devices containing iTunes material, but that as the account xannot legaloy be accdssed by anyone else, those iTunes products are then "fixed" to that device.

[shortie87]

Funny how ReDigi are fine fighting off record companies, but as soon as Apple get involved... They definitely have someone in the US Federal system on the pay role...

[hesham1516]

It seems many here do not seem to fully understand the situation.

- This is a service that allows you to sell your old ****DRM'd**** music. The service transfers the DRM licence from one person to another.

- Yes, a copy of the original mp3 can be left over in the original system, but the DRM will prevent the file from playing unless it was illegally ripped to allow for play after the sale - which has nothing to do with ReDigi.

- The same can be done with a console game can be ripped and sold or returned to shops so this is nothing new, it was just an excuse to shut this type of business down.

Something that was not discussed was how the service gives a percentage of sales to the publishers and the original artists of the media, the only people who are loosing out here are digital distribution providers such as iTunes and Amazon, now that people will be able to get the same product for half the price and no difference in service.

[Saracen]

It seems many here do not seem to fully understand the situation.

- This is a service that allows you to sell your old ****DRM'd**** music. The service transfers the DRM licence from one person to another.

- Yes, a copy of the original mp3 can be left over in the original system, but the DRM will prevent the file from playing unless it was illegally ripped to allow for play after the sale - which has nothing to do with ReDigi.

- The same can be done with a console game can be ripped and sold or returned to shops so this is nothing new, it was just an excuse to shut this type of business down.

Something that was not discussed was how the service gives a percentage of sales to the publishers and the original artists of the media, the only people who are loosing out here are digital distribution providers such as iTunes and Amazon, now that people will be able to get the same product for half the price and no difference in service.

Do you understand the situation, though?

First, if you think that the percentage going to the artist, etc, wasn't discussed, you didn't read the judgment carefully enough, if at all. It's on page 3. 20% to the seller, 20% to an escrow account for the artist, and 60% to ReDigi.

Secondly, the judgment was based on what the law says, not what it maybe ought to say, when it's caught up with technological change.

In brief, again ...

- were copyright works involved? Yes. That wasn't disputed.
- did Capitol own the copyright? Yes, and again, not disputed.
- were copies made on ReDigi servers. Yes. Part of the judgment.
- does copyright law apply? Yes.
- were "copies", within the legal definition of the term, made? Yes.
- did an affirmative defence apply?
a) Fair use? No.
b) First sale doctrine? No.

So, works were copyrighted, yet copied, no affirmative defence applied, and ReDigi knowingly and deliberately, of it's own volition, did this. Therefore, it is primarily and secondarily liable.

Should the law be changed? That, the court said, is for lawmakers, not courts. The court is there to interpret, apply and enforce the law as it is, not make up new ones as it goes along. And that's what it did, until or unless either a higher court overrules it, or lawmakers change the law.

[crossy]

It seems many here do not seem to fully understand the situation. This is a service that allows you to sell your old ****DRM'd**** music. The service transfers the DRM licence from one person to another. Yes, a copy of the original mp3 can be left over in the original system, but the DRM will prevent the file from playing unless it was illegally ripped to allow for play after the sale - which has nothing to do with ReDigi.

If you've found a way to apply DRM to an MP3 then the record labels will beat a path to your door waving Christmas-stuffed chequebooks! I think what you've got in mind is fingerprinted MP3's - such as the one shown on the old article here. A fingerprinted MP3 isn't DRM'd in the classic sense of "if you try and play this without authorisation then it'll fail", but instead is "if you share this file then we'll find out and prosecute".

Oh, and to accuse the Hexus hive-mind of a "failure to understand" is very, very dangerous unless you're 100%+ sure of the facts. There's just too many experts here (and I'm not one of them by any means) for any technical misunderstand to go uncorrected for very long. Continuing kudos to Spud1, Saracen, TheAnimus, CatTheFifth and all the other dai-sensei of the Hexus village....