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“Can I resell my MP3s?” redux—federal judge says no
In Capitol Records v. ReDigi, the Boston digital music startup loses.
by Cyrus Farivar - Apr 1 2013, 2:45pm EDT
COPYRIGHT
128
For years, many a music fan has wondered what we first posited back in 2008: “Can I resell my MP3s?”
After all, as we’ve pointed out in the past, nearly all digital good sales are really licenses rather than sales as conventionally understood. The question here is, can such a license be bought and sold to other users?
On Saturday, a federal court in New York ruled in summary judgment within the case of Capitol Records v. ReDigi. The court decided that no, users do not have the right to resell digital music files, as doing so violates existing copyright law. ReDigi, the judge found, is also liable for secondary copyright infringement and likely will have to pay damages. The judge wrote:
Courts have consistently held that the unauthorized duplication of digital music files over the Internet infringes a copyright owner’s exclusive right to reproduce. See, e.g., A&M Records, Inc. v. Napster, Inc., 239 F.3d 1004, 1014 (9th Cir. 2001). 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.
Last year, the judge in the case, Richard Sullivan, denied a motion that would have shuttered ReDigi. The Boston-based music startup did not immediately respond to Ars' request for comment. The company has not indicated whether it plans to appeal the decision.
ReDigi argued that it was protected both by fair use and by the first sale doctrine, which allows for a good to be resold. Recently, the Supreme Court ruled in favor of first sale rights, protecting the rights of a used book vendor to import cheaper textbooks from Thailand to the United States. But here, the judge disagreed with ReDigi's premise:
Here, a ReDigi user owns the phonorecord that was created when she purchased and downloaded a song from iTunes to her hard disk. But to sell that song on ReDigi, she must produce a new phonorecord on the ReDigi server. Because it is therefore impossible for the user to sell her “particular” phonorecord on ReDigi, the first sale statute cannot provide a defense. Put another way, the first sale defense is limited to material items, like records, that the copyright owner put into the stream of commerce. Here, ReDigi is not distributing such material items; rather, it is distributing reproductions of the copyrighted code embedded in new material objects, namely, the ReDigi server in Arizona and its users’ hard drives. The first sale defense does not cover this any more than it covered the sale of cassette recordings of vinyl records in a bygone era.
In Capitol Records v. ReDigi, the Boston digital music startup loses.
by Cyrus Farivar - Apr 1 2013, 2:45pm EDT
COPYRIGHT
128
For years, many a music fan has wondered what we first posited back in 2008: “Can I resell my MP3s?”
After all, as we’ve pointed out in the past, nearly all digital good sales are really licenses rather than sales as conventionally understood. The question here is, can such a license be bought and sold to other users?
On Saturday, a federal court in New York ruled in summary judgment within the case of Capitol Records v. ReDigi. The court decided that no, users do not have the right to resell digital music files, as doing so violates existing copyright law. ReDigi, the judge found, is also liable for secondary copyright infringement and likely will have to pay damages. The judge wrote:
Courts have consistently held that the unauthorized duplication of digital music files over the Internet infringes a copyright owner’s exclusive right to reproduce. See, e.g., A&M Records, Inc. v. Napster, Inc., 239 F.3d 1004, 1014 (9th Cir. 2001). 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.
Last year, the judge in the case, Richard Sullivan, denied a motion that would have shuttered ReDigi. The Boston-based music startup did not immediately respond to Ars' request for comment. The company has not indicated whether it plans to appeal the decision.
ReDigi argued that it was protected both by fair use and by the first sale doctrine, which allows for a good to be resold. Recently, the Supreme Court ruled in favor of first sale rights, protecting the rights of a used book vendor to import cheaper textbooks from Thailand to the United States. But here, the judge disagreed with ReDigi's premise:
Here, a ReDigi user owns the phonorecord that was created when she purchased and downloaded a song from iTunes to her hard disk. But to sell that song on ReDigi, she must produce a new phonorecord on the ReDigi server. Because it is therefore impossible for the user to sell her “particular” phonorecord on ReDigi, the first sale statute cannot provide a defense. Put another way, the first sale defense is limited to material items, like records, that the copyright owner put into the stream of commerce. Here, ReDigi is not distributing such material items; rather, it is distributing reproductions of the copyrighted code embedded in new material objects, namely, the ReDigi server in Arizona and its users’ hard drives. The first sale defense does not cover this any more than it covered the sale of cassette recordings of vinyl records in a bygone era.
Sorry, Oerdin. You'll probably have to go back to the piratebay or something for them now.
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