ReDigi Ruling Shows The Widening Atoms-Vs.-Bits Fracture In Copyright Politics

by Rob Pegoraro on April 2, 2013

Those songs you paid for and downloaded legally from the likes of Amazon and iTunes? A federal district court ruling yesterday held that you don’t really own them, in the sense of having the basic ownership right of being able to sell them.

Judge Richard Sullivan’s decision in Capitol Records v. ReDigi isn’t going over well with digital-liberty types. It shouldn’t. It’s another example of trying to fit a digital case into an analog frame, at the cost of denting some logic along the way.

The case started when ReDigi opted to set up a clearinghouse for iTunes purchases. You’d use its music-management app to verify which of your files had come from Apple’s store and transfer those to its online storage (deleting your local copies in the process); from there, you could stream them to your computer or put them up for sale to other ReDigi users (making them unavailable to you in the process).

If this transaction involved a CD, nobody would question its legality. You bought the disc and own it; U.S. copyright law’s first-sale doctrine guarantees your right to sell that physical object to somebody else.

But the relevant section of copyright law is not so clear about the status of digital downloads. (You can’t point to Apple’s terms of sale for clarity in ReDigi’s iTunes-specific case; they don’t explicitly bar resale or call a music purchase a license, unlike Amazon’s.) Facing that unsettled situation, Sullivan read those provisions to favor Capitol Records: a transfer of a digital music file over the Internet is not a transfer but a reproduction, legally speaking.

“It is beside the point that the original phonorecord no longer exists,” wrote Sullivan. “It matters only that a new phonorecord has been created.”

(I hear some of you protesting already: “But… but… what difference does it make? The supply of music is the same!” I hear you.)

And therefore, the only way to stage a legal resale of purchased digital-music files is to sell the physical device on which you first downloaded them: “Section 109(a) still protects a lawful owner’s sale of her ‘particular’ phonorecord, be it a computer hard disk, iPod, or other memory device onto which the file was originally downloaded.”

(Don’t tell that to record labels, which have long frowned on re-selling MP3 players pre-loaded with digital music.)

If you narrow your gaze to existing copyright law and due deference to the legislative branch’s responsibility to write new laws, this isn’t necessarily an absurd result.

You might even zoom back out to the Constitutional grounding for creating intellectual-property rights at all–“to promote the Progress of Science and useful Arts”–and say the theoretically-endless life of digital copies means they could inflict more harm on the music market than physical releases and therefore warrant different treatment.

But do you really want to try to pass a law that bans giving a purchased song to a family member or a friend?

And that’s the problem for legislators, lawyers and lobbyists: How many non-lawyers think along these lines? From individual buyers’ perspective, the atoms of a CD and the bits of an Amazon MP3 or iTunes AAC file have equal status, and they own the file as as surely as they own a CD.

Having your e-mail address stamped in each download still discourages indiscriminate online sharing, but nothing in today’s digital-music download emporiums stops you from giving individual files to friends. Nor is there any hope of stopping that with a new law or court ruling. Here, both technology and tradition combine to teach the same lesson.

And in the political sphere, where this may ultimately be decided, stretching analog legal precepts in a way that would criminalize what’s an accepted digital practice amounts to a loser of an argument.

  • Jesse

    I’d actually reverse your analogy: in this case, the correct result is fitting digital music in an analog framework, in the sense that if I sell a copy of a file (and make it unavailable to myself in the process) I am doing the same thing you do with a physical record or CD.

    In that sense the old analog framework is just fine. Just apply it to digital stuff; in some ways it’s even easier to do. Heck, you could equip every file with a “self destruct” that moves copies from device A to device B without leaving a usable copy on Device A without much technical skill. Apple already does something similar with their device authorization limits.

    I do think the whole bruhaha over digital copying underscores a fundamental misunderstanding of technology by both legislators and self-described “techies.” Both tend to treat technology as magic. The former doesn’t get how stuff works, and ignores the implications; the latter bang on about “paradigm shifting” (or whatever the cool phrase is now) and how suddenly it magically makes everything before it irrelevant and we live in some utopian Heinlein-esque libertarian-world as a result. Both sides absolutely and resolutely ignore continuities, context, and history.

    You might have some fun (if you haven’t already) looking at the similar fights when tape cassettes and the VCR were invented. The courts were much less forgiving to the record companies then.

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