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Google Asks Court Not To Enjoin ReDigi

timothy posted more than 2 years ago | from the round-trip-on-a-one-way-ticket dept.

Google 185

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

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185 comments

fp (-1)

Anonymous Coward | more than 2 years ago | (#38901761)

First post

Re:fp (1, Redundant)

silverglade00 (1751552) | more than 2 years ago | (#38902073)

First posts are NOT material objects.

I thought Google was evil now? (0)

Anonymous Coward | more than 2 years ago | (#38901773)

But this appears to be a good thing logically.

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

Re:I thought Google was evil now? (4, Insightful)

Tsingi (870990) | more than 2 years ago | (#38901805)

But this appears to be a good thing logically.

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

Today you like them. Tomorrow is a new day.

Re:I thought Google was evil now? (1)

Spad (470073) | more than 2 years ago | (#38902007)

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

Re:I thought Google was evil now? (1)

Tsingi (870990) | more than 2 years ago | (#38902049)

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

Sometimes. Hard to imagine that ever happening with Capitol Records tho'.

Re:I thought Google was evil now? (3, Insightful)

Tanktalus (794810) | more than 2 years ago | (#38902191)

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

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

Re:I thought Google was evil now? (4, Insightful)

L4t3r4lu5 (1216702) | more than 2 years ago | (#38902067)

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

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

Re:I thought Google was evil now? (4, Funny)

stanlyb (1839382) | more than 2 years ago | (#38902125)

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

Re:I thought Google was evil now? (1)

mrclisdue (1321513) | more than 2 years ago | (#38902383)

You're in trouble now, for sure. Some lawyer is going to sue you for substituting "corporation" for "lawyer". Your statement surely infringes trademark, thief.

cheers,

Re:I thought Google was evil now? (1)

geminidomino (614729) | more than 2 years ago | (#38902935)

Pfft. That would imply that "The Only Good Lawyer is a Dead Lawyer." But everyone knows that when you kill one of those fuckers, they seep toxic... stuff, like the Mummies in Diablo II.

"Dead" Lawyers are almost (but not quite) as bad as live ones.

I think you meant "The only good lawyer is a lawyer encased in opaque diamond and fired into the sun.

Re:I thought Google was evil now? (4, Insightful)

darthdavid (835069) | more than 2 years ago | (#38902299)

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

Re:I thought Google was evil now? (5, Informative)

Tsingi (870990) | more than 2 years ago | (#38902571)

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

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

Re:I thought Google was evil now? (1)

ATMAvatar (648864) | more than 2 years ago | (#38902671)

Unfortunately, while that is a nice thought, it doesn't bear out in practice. The removal of any personal responsibility by the staff for any action taken part by the corporation as a whole means that every action is a simple business decision. If the cost of breaking a law is less than the reward, then the simple decision is to flout the law. Strictly speaking, the corporation is actually irresponsible if it doesn't break the law in those situations.

We lost the ethics battle as soon as a corporate charter became an impenetrable shield against holding individuals accountable for their actions.

Re:I thought Google was evil now? (1)

Freddybear (1805256) | more than 2 years ago | (#38903385)

There has never been a time when a corporate charter is or was an impenetrable shield against holding individuals accountable for their actions. If individuals break the law, whether they're doing it on behalf of a corporation or not is no shield.

Re:I thought Google was evil now? (0)

Anonymous Coward | more than 2 years ago | (#38903247)

What I've found is that while most Americans make a distinction between legal and illegal economic activity, they see no such line between moral and immoral economic behavior. In fact America's motto is really don't take it personally its only business.

Re:I thought Google was evil now? (1)

Freddybear (1805256) | more than 2 years ago | (#38903343)

What you consider to be immoral is not necessarily illegal.

Re:I thought Google was evil now? (1)

Sique (173459) | more than 2 years ago | (#38902537)

Except that a) the Depression was over in 1931, and Germany was well back into recovery in 1933, when Hitler became chancellor, and b) the economic powerhouse was paid for in debt for the first six years till 1939, and then from the loots and booties he took from the conquered countries.

Re:I thought Google was evil now? (1)

mrchaotica (681592) | more than 2 years ago | (#38902747)

And stop anthropomorphising corporations

The concept of "corporation" itself is inherently an anthropomorphization!

Re:I thought Google was evil now? (0)

Anonymous Coward | more than 2 years ago | (#38903093)

And that is the problem with the world today, that profit needs to be balanced with the long term growth of the corporation by retaining the good will of your customers. Unfortunately most of today's executives are only interested in getting this quarters bonus's and to hell with what that does in the long term.

Re:I thought Google was evil now? (0)

Anonymous Coward | more than 2 years ago | (#38901847)

Are you Bonch, Sharklaser, Dtech, OverlyCriticalGuy, Hairyfeet or any other Weggener Edstrom sockpuppet today? If yes, then you hate them.

Re:I thought Google was evil now? (0)

mrclisdue (1321513) | more than 2 years ago | (#38902417)

Hey, Hairyfeet is straight up, imho.

I like his stuff. Sometimes he can be a bit over-the-top (who isn't?), but for the most part he knows his shit and often presents a *fairly* balanced argument.

As for the others....

cheers,

Re:I thought Google was evil now? (2, Insightful)

kiwimate (458274) | more than 2 years ago | (#38901933)

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

So I just don't use them.

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

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

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

Re:I thought Google was evil now? (1)

Rockoon (1252108) | more than 2 years ago | (#38902559)

As of this moment, parent is modded 50% insightful and 50% offtopic.

I dont see how its offtopic. It isnt that big of a stretch to define mp3 files as computer programs if jar files and the like are also defined as computer programs.

Re:I thought Google was evil now? (3, Insightful)

Tharsman (1364603) | more than 2 years ago | (#38902059)

But this appears to be a good thing logically.

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

They have vested interests in cloud computing.

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

Re:I thought Google was evil now? (1)

stanlyb (1839382) | more than 2 years ago | (#38902111)

Only it is not true. It may sound logical, but the law is pretty specific about which items are subject to "first sale" rule.

Re:I thought Google was evil now? (0)

Anonymous Coward | more than 2 years ago | (#38903319)

There is nothing altruistic about this, it just serves their business model. You will soon find out, if you didn't already, what a big hypocrite David Drummond (the guy who worked on this) really is.

Either one or the other (2)

cmdr_klarg (629569) | more than 2 years ago | (#38901779)

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

MAFIAA wants both (1, Insightful)

Taco Cowboy (5327) | more than 2 years ago | (#38901809)

Or they wouldn't be MAFIAA, would they?

Re:MAFIAA wants both (1)

Walterk (124748) | more than 2 years ago | (#38902013)

"Hey, that's an awfully good cake you have there. It would be a shame if... something.. were to happen to it.."

Re:Either one or the other (5, Funny)

Spad (470073) | more than 2 years ago | (#38901835)

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

Re:Either one or the other (1)

jbeaupre (752124) | more than 2 years ago | (#38902553)

In yet more news, RIAA sues itself for making an unauthorized copy of a cake. In court filings, RIAA demands that Betty Crocker turn over the list of John Does going by the acronym RIAA.

Re:Either one or the other (1)

VGPowerlord (621254) | more than 2 years ago | (#38901849)

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

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

Re:Either one or the other (3, Informative)

HungryMonkey (1887382) | more than 2 years ago | (#38902117)

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

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

Re:Either one or the other (5, Informative)

agentgonzo (1026204) | more than 2 years ago | (#38902147)

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

Re:Either one or the other (1)

mosb1000 (710161) | more than 2 years ago | (#38901891)

Oh, but they can.

Re:Either one or the other (2)

v1 (525388) | more than 2 years ago | (#38903115)

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

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

Eh (0)

XrayJunkie (2437814) | more than 2 years ago | (#38901787)

Would someone please recap this article for me?
Whats the statement?

Re:Eh (5, Informative)

sosume (680416) | more than 2 years ago | (#38901877)

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

Re:Eh (5, Funny)

NonUniqueNickname (1459477) | more than 2 years ago | (#38902185)

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

Re:Eh (2)

Sinn3d (1594333) | more than 2 years ago | (#38902421)

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

Re:Eh (5, Informative)

devjoe (88696) | more than 2 years ago | (#38902103)

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

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

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

Copy vs Copyright (1)

chiasmus1 (654565) | more than 2 years ago | (#38903337)

So, it appears that Google is claiming that Capital Records either sold a copy of the music or they actually sold their copyright to the music. Is that how I am supposed to read this?

If I may be the first to say... (1)

TheUnFounded (731123) | more than 2 years ago | (#38901795)

Get 'em NYCL!

Re:If I may be the first to say... (-1)

Anonymous Coward | more than 2 years ago | (#38902053)

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

Re:If I may be the first to say... (2)

NewYorkCountryLawyer (912032) | more than 2 years ago | (#38902561)

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

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

Re:If I may be the first to say... (1)

PerfectionLost (1004287) | more than 2 years ago | (#38902693)

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

Re:If I may be the first to say... (2)

NewYorkCountryLawyer (912032) | more than 2 years ago | (#38903179)

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

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

Re:If I may be the first to say... (1)

PerfectionLost (1004287) | more than 2 years ago | (#38903219)

I am 100% in agreement with having supporting documents. One reason I like /. is that other people who are more into it can pick apart the underlying documents while I can read an editorial and know that the facts have been checked.

Re:If I may be the first to say... (0)

Anonymous Coward | more than 2 years ago | (#38902699)

NYCL,

Many of us value and respect you comments on this. The time you do spend posting is something I apreceate a lot. Thank you for the insites you give us.

Re:If I may be the first to say... (1)

NewYorkCountryLawyer (912032) | more than 2 years ago | (#38903161)

NYCL, Many of us value and respect your comments on this. The time you do spend posting is something I apreciate a lot. Thank you for the insights you give us.

Thank you. Much appreciated. I was just kidding. It's obligatory, isn't it, for us to bash Slashdot from time to time? I love the Slashdot community, and have since the first time, in 2005, that I stumbled on this nutty place. I truly do value my experience here.

Re:If I may be the first to say... (1)

NewYorkCountryLawyer (912032) | more than 2 years ago | (#38902555)

Get 'em NYCL!

OK. Will do.

Poor Supporting Argument (2, Interesting)

mwfischer (1919758) | more than 2 years ago | (#38901797)

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

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

Re:Poor Supporting Argument (3, Informative)

Maximum Prophet (716608) | more than 2 years ago | (#38901837)

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

Re:Poor Supporting Argument (1)

rykin (836525) | more than 2 years ago | (#38901839)

I'm sure this is Google poking at the whole concept that "jobs are on the line here" as that is a sensitive issue right now.

Re:Poor Supporting Argument (5, Insightful)

Joehonkie (665142) | more than 2 years ago | (#38901871)

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

Re:Poor Supporting Argument (5, Insightful)

Anonymous Coward | more than 2 years ago | (#38901949)

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

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

Re:Poor Supporting Argument (0)

Anonymous Coward | more than 2 years ago | (#38902611)

Actually for them it's more like "heads I win, tails I win".

Re:Poor Supporting Argument (3, Insightful)

m.ducharme (1082683) | more than 2 years ago | (#38902061)

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

Re:Poor Supporting Argument (1)

Jason Levine (196982) | more than 2 years ago | (#38902205)

I've got to agree. Especially when the entertainment industry is claiming "We need you to do X to save our industry from losing money/jobs." If the money/jobs they are losing is more than offset by the money/jobs that the technology industry gains by not doing X, then the economic argument for X is lessened.

Re:Poor Supporting Argument (0)

Anonymous Coward | more than 2 years ago | (#38902071)

This is about clarifying what mp3 fall under (a product or a license) which can only be a good thing. As it stands, the ambiguity only serves to help the RIAA as they choose to selectively use the laws that convient for them while ignore other laws that cover the same subject. If mp3 is a product, fair use can be used. If mp3 is a license, there is no distribution right of a material object as a license it not material. Either way, it's something that really should be settled.

Re:Poor Supporting Argument (2)

eggstasy (458692) | more than 2 years ago | (#38902729)

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

This is a bizarre and gross pipe-dream... (-1)

Anonymous Coward | more than 2 years ago | (#38901823)

...and I will have nothing of it.

You (well-ediucated) retards refuse and resist to understand that it's pretty well plain and clear that if you download a digital copy it's "for your eyes only". Sure you may put an imdb rating up, you may rotten tomatoes it (but I don't know how that crap works) but we all try to snidely cover our ass by placing it on fiar-use anyhow. So who gives a double-f you see kay? Nobody. But it will never be legal, for the reasons I outline in the non-existent BS comment below, which boiled down states: "It will never be legal".

Can the courts decide A = !A (2)

Maximum Prophet (716608) | more than 2 years ago | (#38901883)

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

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

Circuit Split (5, Informative)

langelgjm (860756) | more than 2 years ago | (#38901945)

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

Re:Can the courts decide A = !A (0)

Anonymous Coward | more than 2 years ago | (#38901983)

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

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

In the US at least, appeal to the next higher court, whose precedent lower courts have to follow, and ultimately to the Supreme Court. Google "circuit split".

Re:Can the courts decide A = !A (1)

Olivier Galibert (774) | more than 2 years ago | (#38901991)

That's what the appeal process and supreme courts are for. There's only one supreme court per state (for state issues) and one federal supreme court so that the final saying is, well, final and non-contradictory.

    OG.

Re:Can the courts decide A = !A (1, Redundant)

robot256 (1635039) | more than 2 years ago | (#38901999)

While it is possible for two separate courts to come to conflicting conclusions, it seems that Google's biggest worry should be that one judge will award damages based on both interpretations simultaneously. This would set a precedent allowing both distribution and counterfeiting laws to be abused in digital information cases, defining mp3 files as some sort of "hyper-product" that can be controlled in any manner the copyright owner likes.

Re:Can the courts decide A = !A (1)

Kjella (173770) | more than 2 years ago | (#38902023)

Not in general. But those cases will then typically be cited in the next lawsuit over A and often end up with some appellate or supreme court taking them on if the lower court decisions are conflicting. As far as I know it doesn't go back to resolve things either, just going forward the precedent is now set that the law says so and so. That only applies to findings of law though, when it comes to findings of facts pretty much anything can happen as they interpret the evidence differently.

Re:Can the courts decide A = !A (1)

westlake (615356) | more than 2 years ago | (#38902691)

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

Context matters.

A can be true in one set of circumstances and A can be false in another.

Re:Can the courts decide A = !A (1)

forkfail (228161) | more than 2 years ago | (#38903207)

It's because our legal system allows multiple inheritance...

Phonorecords duality ! (3, Funny)

advid.net (595837) | more than 2 years ago | (#38901931)

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

Or could they ?

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

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

Re:Phonorecords duality ! (1)

cvtan (752695) | more than 2 years ago | (#38902069)

So the record companies are both morons AND idiots!

Re:Phonorecords duality ! (4, Funny)

bondsbw (888959) | more than 2 years ago | (#38902121)

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

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

Re:Phonorecords duality ! (3, Informative)

robot256 (1635039) | more than 2 years ago | (#38902539)

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

Re:Phonorecords duality ! (1)

cfulmer (3166) | more than 2 years ago | (#38903335)

At least that part falls apart. But, the main part of the case claims an infringement of the right to make copies, not an infringement of the distribution right. The argument is, approximately, "You claim to be re-selling electronic goods. But, to do that, this is what you do: (1) copy the mp3 file from the seller's computer to yours, (2) delete the file from the seller's computer, (3) copy the mp3 file to the buyer's computer, (4) delete the copy on your computer. The verb 'copy' appears in there twice. But, you're not allowed to copy the original work.

There's also the question of whether the seller actually owns a copy, or is just a licensee. Because if he doesn't own a copy, then the first sale doctrine doesn't apply either.

This case has interesting implications for libraries, who have been fighting with publishers over rights to 'lend' electronic copies of their books -- so far, all of those agreements have been predicated on the idea that 'lending' an ebook does make a copy of it. (Of course, the facts are a bit different there, since the library typically does not delete the copy from its servers; the copy just electronically expires on the borrower's computer.)

Re:Phonorecords duality ! (0)

Anonymous Coward | more than 2 years ago | (#38902881)

Yes, please. Let the RIAA rewrite the law of physics. I can't foresee anything wrong with the outcome.

Sure they can be both (2)

elrous0 (869638) | more than 2 years ago | (#38901957)

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

Put up or shut up (0)

Anonymous Coward | more than 2 years ago | (#38903253)

Fine, but they haven't paid yet for an updated law yet. They should have to bear the expense or make credit arrangements with the court or legislators before it sides with them. Why would someone support them prior to securing payment? Talk is cheap.

That adds attrition considerations to the strategic balance. The media has millions in campaign donations now, but let them start spending it and then we'll see how things stand after a few rounds of this.

Finally (2)

equex (747231) | more than 2 years ago | (#38902033)

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

Re:Finally (2)

Larryish (1215510) | more than 2 years ago | (#38902175)

chaotic neutral is the way to be

unfortunately it tends to degrade into lawful evil

Re:Finally (0)

Anonymous Coward | more than 2 years ago | (#38902649)

I think you meant Chaotic Evil

Re:Finally (1)

Anonymous Coward | more than 2 years ago | (#38902759)

You must have missed his interpretive dance number that showed the progression to Lawful Evil. Beautiful reasoning that.

But the statute doesn't say that :/ (4, Interesting)

Theaetetus (590071) | more than 2 years ago | (#38902045)

From Google's letter:

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

But 17 USC 106(3) just says:

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

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

Google is correct that the Capitol Records brief is inconsistent:

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

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

Re:But the statute doesn't say that :/ (1)

kiwimate (458274) | more than 2 years ago | (#38902089)

I agree. My thought [slashdot.org] is they'll update the law to include MP3s under the cover of computer programs.

Re:But the statute doesn't say that :/ (5, Informative)

devjoe (88696) | more than 2 years ago | (#38902337)

But 17 USC 106(3) just says:

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

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

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

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

Re:But the statute doesn't say that :/ (4, Informative)

bytestorm (1296659) | more than 2 years ago | (#38902387)

Parent is right:

US Code, Title 17,101 Definitions [cornell.edu]

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

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

They are very much defined as physical objects

mp3 stored records is material (1)

advid.net (595837) | more than 2 years ago | (#38902637)

At the time the mp3 is saved on a disk or flash memory, it is materialized. Even if it shares the device with other files, it really has a some sectors or cells for itself. Just as some works were carved on wax or are pressed as vinyl and CD.

However, the work is communicated via non-material means.

We can say that the mp3 is sold as a non material stream, then materialized by the buyer. (I don't refer here to music streaming, but to the point that any download is a byte stream)

Re:mp3 stored records is material (0)

Anonymous Coward | more than 2 years ago | (#38903171)

Well, by the same token a radio broadcast is a stream of photons and when you listen to it and remember it, the changed neural pathways "materialize" it into your brain, so you're making an unauthorized recording then.

Re:But the statute doesn't say that :/ (3, Informative)

Dhalka226 (559740) | more than 2 years ago | (#38902517)

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

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

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

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

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

Re:But the statute doesn't say that :/ (3, Informative)

NewYorkCountryLawyer (912032) | more than 2 years ago | (#38902535)

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

Disclosure? (2)

Mathinker (909784) | more than 2 years ago | (#38902375)

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

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

Re:Disclosure? (3, Interesting)

NewYorkCountryLawyer (912032) | more than 2 years ago | (#38902511)

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

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

Perhaps we should ask ... (1)

Rambo Tribble (1273454) | more than 2 years ago | (#38902525)

... if Capitol Records hasn't become "immaterial".

Precedent? (3, Interesting)

Muad'Dave (255648) | more than 2 years ago | (#38902565)

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

Re:Precedent? (0)

Anonymous Coward | more than 2 years ago | (#38903299)

They say "Own {it on DVD}". Buying {it on DVD} does not automatically give you the rights to own {it on Blu-ray}. They're two different products.

The ownership is for the movie on the particular medium.

Why not BUY them outright? (2)

L3370 (1421413) | more than 2 years ago | (#38902787)

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

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

The rest of the industry will STFU and play nice.

Re:Why not BUY them outright? (2)

NewYorkCountryLawyer (912032) | more than 2 years ago | (#38903087)

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

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

This IS significant, and affects mechanical licens (1)

Overzeetop (214511) | more than 2 years ago | (#38902837)

In mechanical licensing - which is the fee due to the composer and lyricist, a "Permanent Digital Download" is treated nearly identically to a track on a CD or a song recorded to a record or tape. The fee is set by statute (http://www.copyright.gov/carp/m200a.pdf), though if you are going to produce a lot of copies, you can negotiate directly with the owners or through HFA (Harry Fox Agency) for those it represents.

This strikes directly to the heart of the matter: if the copyright holders are getting paid the same amount for a CD as an MP3, then the rights of the end user should be the same. When it is a "permanent" digital download, it's a manifestation which you own forever and should be transferable.

This actually matters to me quite a bit, as I am involved in the distribution of very low quantity recordings (~120 copies at a time) on CD. I'd like to switch over to digital, as it would reduce my costs and the time spent burning discs. I only use these on rare occasions, so it would be nice to "collect" the MP3s and put them back in the library for later use/redistribution. I'll be interested to see what comes out of this.

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