It’ll be very interesting to see the result of a lawsuit currently brewing in federal court that is trying to shut down ReDigi (a judge backed the service, but an appeal seems likely), a service that will let you resell music you purchased from iTunes after taking quite comprehensive efforts to keep owners from having access to the music they want to divest of:
ReDigi says the plaintiff has a “profound misunderstanding of how ReDigi works,” pointing to systems in place to forensically analyze song files to make sure they came from iTunes, to delete files from devices, to upload files for streaming onto RAM, to control access to songs, to limit storage merely for personal use, and to allow users to downloads these files. If it all sounds complicated, yes, that’s the point. The semantic parsing of what’s happening in the transfer of music is at issue in this case, and it gets to the core copyright question, “What is a copy?” That’s an issue that the 2nd Circuit struggled with answering in the 2008 “Cablevision” case, where Hollywood studios attempted to shut down a DVR service that allowed users to store TV programming remotely. In that decision, the justices examined the transitory duration of data buffering and whether works are “fixed” in a tangible medium, and expressed some skepticism with studio arguments about copies being made along the way. But the 2nd Circuit handed Cablevision a win mostly on grounds that its remote DVR was merely acting at the behest of its users.
To be a bit clearer, what’s at issue is whether the doctrine of first sale, which gives content owners the right to sell their copy of content, but not copies of their copy, applies to digital content as well as to physical content. As the Berkman Center for Internet and Society at Harvard explains: “Currently, U.S. and European Union law have denied that the first sale doctrine applies to digital works distributed over the Internet, despite good arguments to the contrary. And the principle has yet to emerge in Asian-Pacific jurisdictions. The WIPO treaties currently stipulate application of the first-sale doctrine to tangible goods like books and CDs and not to intangible content distributed over the Internet.” It’s not surprising that this issue is coming to a head. Some outlets, like Amazon, already stipulate that customers can’t resell the files. But it’s not like the move to digital means that consumers will only want to be able to do different things with their content—it just means they’ll want to do more things, and have the ability to do all the old things as well.
But I do think that this mindset gets at two competing strains of thought when it comes to digital content. The folks I’ve talked to who download content outside of legal channels often come down to arguing that because they aren’t taking a physical object from its owner that could be sold for profit, they aren’t doing any harm. But extending first sale doctrine to digital content certainly means treating that content as if individual copies have value. I tend to think it’s in the interests of both content producers and content consumers, in terms of supporting the creation of new content and providing consumers with content of the highest quality, for content to be treated as if it has a value higher than free all the way through the process, and for content producers to focus aggressively on developing new licit ways to get content to consumers in a timely manner. But we’re a long way from reaching that consensus. Hopefully, this case can help establish some positive new norms.