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Judge Rules That Resale of MP3s Violates Copyright Law

Unknown Lamer posted about a year ago | from the first-sale-does-not-apply dept.

Music 294

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.

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orly? (1, Offtopic)

pedestrian crossing (802349) | about a year ago | (#43335953)

Frist Sale!

Re:orly? (-1)

Anonymous Coward | about a year ago | (#43335967)

Frist Resale!

Let's look at this more closely (5, Funny)

bio_end_io_t (2771123) | about a year ago | (#43335959)

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 (5, Funny)

Opportunist (166417) | about a year ago | (#43335991)

Hey, they're as good as new!

Re:Let's look at this more closely (1)

mcgrew (92797) | about a year ago | (#43336285)

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 (1)

Lumpy (12016) | about a year ago | (#43336335)

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 (2, Insightful)

Anonymous Coward | about a year ago | (#43336001)

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 (1)

tehcyder (746570) | about a year ago | (#43336109)

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 (2)

XLT_Frank (2759563) | about a year ago | (#43336229)

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 (2)

Artifakt (700173) | about a year ago | (#43336327)

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 (3, Informative)

mcgrew (92797) | about a year ago | (#43336373)

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 (5, Insightful)

FireFury03 (653718) | about a year ago | (#43336123)

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 (4, Interesting)

GIL_Dude (850471) | about a year ago | (#43336231)

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 (1)

msauve (701917) | about a year ago | (#43336449)

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 (1, Insightful)

FireFury03 (653718) | about a year ago | (#43336613)

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 (1)

jabuzz (182671) | about a year ago | (#43336647)

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 (1)

FireFury03 (653718) | about a year ago | (#43336653)

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 (4, Informative)

kaizendojo (956951) | about a year ago | (#43336143)

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 (2)

gstoddart (321705) | about a year ago | (#43336207)

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 (1)

omnichad (1198475) | about a year ago | (#43336339)

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 (2)

iamgnat (1015755) | about a year ago | (#43336535)

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 (0)

Anonymous Coward | about a year ago | (#43336331)

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 (1)

serviscope_minor (664417) | about a year ago | (#43336467)

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 (1)

jonbryce (703250) | about a year ago | (#43336583)

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.

Copyright = right to control permission to copy (3, Insightful)

blarkon (1712194) | about a year ago | (#43335961)

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 (4, Funny)

Anonymous Coward | about a year ago | (#43335993)

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

Re:Copyright = right to control permission to copy (3, Insightful)

91degrees (207121) | about a year ago | (#43336029)

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 (1)

fuzzyfuzzyfungus (1223518) | about a year ago | (#43336103)

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 [stanford.edu] 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 (2)

rossdee (243626) | about a year ago | (#43336211)

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 (3, Insightful)

blackraven14250 (902843) | about a year ago | (#43336303)

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 (4, Insightful)

firex726 (1188453) | about a year ago | (#43336105)

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 (0)

Anonymous Coward | about a year ago | (#43336165)

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

Re:Copyright = right to control permission to copy (0)

Anonymous Coward | about a year ago | (#43336203)

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 (1)

firex726 (1188453) | about a year ago | (#43336557)

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 (3, Insightful)

flimflammer (956759) | about a year ago | (#43336255)

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 (0)

Anonymous Coward | about a year ago | (#43336435)

I only use swap.

Let's see what happens (1)

swinferno (1212408) | about a year ago | (#43335965)

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

Re:Let's see what happens (5, Interesting)

Xest (935314) | about a year ago | (#43336013)

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 (0)

Anonymous Coward | about a year ago | (#43336281)

Spotify is european.

Re:Let's see what happens (1)

pimp0r (1030222) | about a year ago | (#43336333)

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.

Digital vs. Physical (1)

Registered Coward v2 (447531) | about a year ago | (#43336155)

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.

WELL DUH !! (0)

Anonymous Coward | about a year ago | (#43335969)

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

Does this apply to only MP3? (1)

ravenswood1000 (543817) | about a year ago | (#43335977)

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? (0)

Anonymous Coward | about a year ago | (#43336055)

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? (1)

Lunix Nutcase (1092239) | about a year ago | (#43336127)

Of course it applies to music in all formats.

Re:Does this apply to only MP3? (0)

Anonymous Coward | about a year ago | (#43336325)

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

Hey unknown lamer (-1, Redundant)

Pikoro (844299) | about a year ago | (#43336009)

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

Re:Hey unknown lamer (2)

Dachannien (617929) | about a year ago | (#43336059)

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

Re:Hey unknown lamer (1)

Pikoro (844299) | about a year ago | (#43336249)

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.

Re:Hey unknown lamer (0)

Anonymous Coward | about a year ago | (#43336071)

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 (0)

Anonymous Coward | about a year ago | (#43336197)

nearly word for word

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

First sale doctrine? (0)

Anonymous Coward | about a year ago | (#43336031)

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? (1)

Anonymous Coward | about a year ago | (#43336107)

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? (1)

hackula (2596247) | about a year ago | (#43336137)

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? (1)

fuzzyfuzzyfungus (1223518) | about a year ago | (#43336161)

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 (1)

Fnord666 (889225) | about a year ago | (#43336035)

"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 (3, Interesting)

hackula (2596247) | about a year ago | (#43336175)

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 (1)

serviscope_minor (664417) | about a year ago | (#43336493)

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 (1)

Endo13 (1000782) | about a year ago | (#43336553)

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.

Selling Used MP3s (0)

Anonymous Coward | about a year ago | (#43336041)

..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 (1)

Maxo-Texas (864189) | about a year ago | (#43336061)

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 (1)

SpectreBlofeld (886224) | about a year ago | (#43336121)

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 (1)

tehcyder (746570) | about a year ago | (#43336129)

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 (1)

Maxo-Texas (864189) | about a year ago | (#43336361)

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 (1)

isilrion (814117) | about a year ago | (#43336455)

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 [amazon.com] 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 (1)

Rob the Bold (788862) | about a year ago | (#43336497)

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 (0)

Anonymous Coward | about a year ago | (#43336661)

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 (1)

FireFury03 (653718) | about a year ago | (#43336145)

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 (1)

Endo13 (1000782) | about a year ago | (#43336655)

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.

Ah the perils of the media business model (-1)

Anonymous Coward | about a year ago | (#43336065)

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 (1)

MickyTheIdiot (1032226) | about a year ago | (#43336081)

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 (0)

Anonymous Coward | about a year ago | (#43336125)

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 (1)

MickyTheIdiot (1032226) | about a year ago | (#43336257)

Ah.. I must of hit a nerve.

Re:Ah the perils of the media business model (1)

cyber-vandal (148830) | about a year ago | (#43336395)

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

Re:Ah the perils of the media business model (2)

tehcyder (746570) | about a year ago | (#43336185)

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 (1)

MickyTheIdiot (1032226) | about a year ago | (#43336253)

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 (4, Insightful)

JeanCroix (99825) | about a year ago | (#43336271)

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 (2)

servognome (738846) | about a year ago | (#43336675)

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

Re:Ah the perils of the media business model (1)

serviscope_minor (664417) | about a year ago | (#43336523)

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.

fuck media companies (0)

Anonymous Coward | about a year ago | (#43336067)

buy directly from artists.

Re:fuck media companies (0)

Anonymous Coward | about a year ago | (#43336191)

but I want music, not paintings!

Re:fuck media companies (1)

tehcyder (746570) | about a year ago | (#43336237)

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 (1)

Lumpy (12016) | about a year ago | (#43336357)

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.

A Judge has sided with the richer party (4, Insightful)

rodrigoandrade (713371) | about a year ago | (#43336083)

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 (0)

Anonymous Coward | about a year ago | (#43336087)

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... (0)

Anonymous Coward | about a year ago | (#43336091)

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 (1)

Anonymous Coward | about a year ago | (#43336093)

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 (1)

MickyTheIdiot (1032226) | about a year ago | (#43336205)

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 (4, Informative)

cpt kangarooski (3773) | about a year ago | (#43336223)

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 (1)

Kjella (173770) | about a year ago | (#43336371)

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.

Could work... (0)

Anonymous Coward | about a year ago | (#43336115)

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.

Don't worry (3, Insightful)

RDW (41497) | about a year ago | (#43336209)

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/ [zdnet.com]

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

Metaphysical confusion (1)

srussia (884021) | about a year ago | (#43336213)

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?

Fight the power (0)

Anonymous Coward | about a year ago | (#43336251)

Just challenge the resale of licenses, then.

Judge was paid off!! (0)

Anonymous Coward | about a year ago | (#43336329)

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

I don't see resale working4digital media w/o drm (1)

gravis777 (123605) | about a year ago | (#43336337)

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 (0)

Anonymous Coward | about a year ago | (#43336363)

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 (1)

jcdr (178250) | about a year ago | (#43336375)

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 (0)

Anonymous Coward | about a year ago | (#43336393)

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.

Fundamental Misconception (0)

Anonymous Coward | about a year ago | (#43336631)

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.

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