No matter what anyone hoped for, the ruling against ReDigi this week was unsurprising. Their approach to resale of digital files– in specific, your iTunes catalog– may appeal on an emotional level, but it never looked good on a legal level. That is, most people continue to confuse the “fair” in “fair use” for something that has nothing whatsoever to do with the reality of digital musical sales.

Here’s a bit of the ruling as reported by CNet:

“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.”

I would suggest that there is an easier way to look at this: when you purchase digital music, you haven’t bought actual ownership of the music. All you’ve done is license that music for your own personal use (indeed, at some point, I’m pretty sure that someone will have to test the heritability issue to find out if your spouse or children or pet, depending on how you’ve written your will, can actually assume ownership of those files after you’ve passed away– my guess is that a strict answer will be “no” but the pragmatics of policing the chain of custody will prove too difficult for enforcement). With a CD, a similar license is purchased but is tied to the actual ownership of the physical device carrying the music– and when you sell that physical device, you’re also selling your rights to “ownership” of the music therein.

The question of how courts view things like transfer of digital files and how copyright violations can occur when groups of people access the “same” file were answered largely when lost early court battles to the big music companies. Their scheme was just as careful and thoughtful as ReDigi, but their arguments failed. Rational or not, the precedent already exists for this decision. Indeed, Apple admitted as much when it made its big contribution to the record companies in return for launching iTunes Match, a service with a tremendous similarity to the way worked.

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2 Responses to “Copyright”

  1. Publicola says:

    Copywrite law is seriously messy, and I think counter-productive to the desirable end. In essence it’s inconsistent with Property Rights, and thus harmful to the property interests of the creators and the consumers. Trying to maintain some consistency with the new fangled digital mediums used to transfer completed works is equally messy and harmful. If it were up to me I’d scrap the whole system and replace it with someone much more akin to the patent system – exclusive Rights for a limited period, say 20-30 years then after that it’s public domain. Transfer of a file would be like any other transfer of property – if there’s no monetary transaction then it’s hunky dory. Not that the record companies and movie studios would think that’s a cool & groovy plan – I’m just sayin’.

    Back before certain states outlawed smoking in buildings they didn’t own (not that I’m still bitter, cause I’m not. I’m not…), you could find flagrant violations of copywrite law every night from 10-2. I don’t know of ANY cover band that sent a list of the tunes they played along with the requisite royalties to ASCAP or BMI. While unenforceable that is a trespass on current copywrite law, and has been for decades.

    In any event, I can’t see replacing the “life + 50 years” with anything less, or making any more meaningful reforms to the copywrite laws. Too many big companies would spend everything they had to stop it. Sans some major reform, the arguing of what constitutes “fair use” is largely academic. Points could be made on either side, but no argument will arrive at a solution that respects property Rights of all concerned or even advances the premise that copywrite laws hinge on.

    Btw, since we were talking about guns ya know, a side effect of this copywrite mess is that a lot of violations of the law are felonies. That would land someone in the “prohibited person” camp, & thus deny them – for life – the ability to legally possess firearms or ammunition. So miscounting the number of angels on the proverbial pinhead whenst you d/l that file of the song from the album that hasn’t been marketed in 15+ years could render you defenseless for life if you’re caught & the record company wants to make a fuss. Cheery situation, isn’t it?

  2. zombyboy says:

    I actually agree with pretty much everything you’ve written. I’ve liked the idea of replacing current copyright law with something closer to our patent laws (although I think that needs an overhaul, too).

    Hadn’t, however, really thought about the felony angle. We’ve expanded what counts as felonies to such an extent, though, that I’m amazed that any of us manage to get through life without committing one (or at least without getting caught).

    BTW- Great to see you writing and interacting with us again. I had been wondering how you were doing.

    Also, I have what feels like a really nifty idea in my head that I want to talk to fellow gun bloggers about. I’m hoping we can find a time to get together sometime soon.

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