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 MP3.com 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 MP3.com worked.
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