Supreme Court Ruling Paves Way For MP3 Re-Sales
Yesterday's Supreme Court ruling in favor of a student who had friends buy textbooks in Thailand for re-sale in the U.S. is likely to have wide ranging impact on the re-sale of MP3's and other digital goods. Startup ReDigi is already testing the waters, and both Amazon and Apple have filed patents that show strong interest in mp3 re-sales. But until yesterday, the courts have either remained silent or appeared to lean towards banning them.
Tuesday's high court ruling, however, confirmed the first sale doctrine, which allows that a person who bought copy written material has the right to "sell or otherwise dispose" of it without permission from the copyright owners.
The judge reviewing the ongoing Capital Records copyright infringement claim against ReDigi is likely to be influenced by the Supreme Court decision. "I think it will push him to find a way for ReDigi to work, to find a way forward for them that copyright allows," Jason Schultz, a UC Berkeley law professor who filed a brief in the Supreme Court case on behalf of the student told NPR.
I think what should be argued here is that in the case of an mp3, you’re not selling the file, but a copy of the file. The actual digital info (the 1s and 0s on your computer, phone, etc.) is not transferred to the new buyer, a copy is made. Hopefully lawyers will think of that. Then again, if it comes to taking more money away from artists, I’m sure this will all become legal very fast…
The concepts involved in MP3 resale are completely different from the Thailand textbook case.
The Thailand book case turned on whether books printed in Thailand qualified as copies of works that were “lawfully made under” the US Copyright Act. Publishers argued that the copies were not lawfully made under the law because they were not physically created in the US, thus the Copyright Act and its first-sale doctrine did not apply.
However, the Court agreed that the copies did not have to be physically made in the US pursuant to the Copyright Act to satisfy the “lawfully made under” provision – only that the copies could not have been made in violation of US law (regardless of whose law governed at the time of the copies’ creation).
For example, if these books were bootlegged copies made in Germany, they would not have been lawfully made under the law and cannot be resold here. However, if the books were lawfully made in Germany and purchased in Germany, they can be resold in the US.
There is no correlation to MP3s and the Court’s decision cannot be said to be instructive on the MP3 issue. While the law is fuzzy, when I buy a digital track, I am purchasing a copy of the file. The copy physically resides on my hard drive just as it would physically reside on a CD if I purchased that way. Under fair use, I am allowed to duplicate the file for my own purposes and put on my portable player, burn to disc, etc. However, I am not allowed to create a copy and then sell that copy to someone else. Even if I delete my original copy, I have still created an unauthorized duplication and sold that duplicate copy, which violates the copyright owner’s exclusive right to duplicate and distribute the work.
This is just another way to rip off musicians. ReDigi claims they only resell tracks that were legitimately bought as downloads, and that the track is removed from the user’s hard drive as soon as it is resold. But there is no way to tell whether the user has copied the tracks onto a CD or another hard drive before “reselling” them. We found tracks of ours on ReDigi that had never been sold as digital downloads. The only way they could have gotten them was to rip them off a CD. So they were selling our tracks illegally, without permission, without paying us anything, and competing with our legitimate sales by offering a lower price. How is this different from piracy?