Pixel Envy

Written by Nick Heer.

Court Rules It Is Illegal to Resell Digital Music

According to the judgement:

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 other words, the statute that ReDigi was relying upon only covers exact articles, not duplicates thereof.

It’s a different law altogether, but it reminds me of the decisions against music piracy. In those cases, despite a physical copy never exchanging hands and only duplicates being made, it was (and still is) treated as stealing — the equivalent of shoplifting a CD. But when that argument does not favour the labels, digital music files are suddenly (and correctly) duplicates, subject to different rules.

These laws effectively need to be rewritten to comply with digital terminology and structures. It’s now possible to pirate physical objects, albeit in a limited sense. How does that fit into the current legal framework? (Hint: it doesn’t.)