Judge Denies Injunction Against MP3 Reseller Due To Lack Of Irreparable Harm... But Says EMI's Arguments Compelling
from the first-sale-is-dead dept
I've said before that I'm skeptical of the idea behind ReDigi -- a seller of "used" mp3s. The company claims it has a system to make sure that if you sell a music file you own, that they then make sure it's deleted from your computer. This just seems dumb for a variety of reasons -- some economic, some technological and some legal. But, most of all, I just don't see people caring enough to make this a valid business. Either way, whether it's dumb or not, the RIAA couldn't let the company actually try something new... so, of course it sued, with EMI subsidiary Capitol Records taking the lead on the case.Somewhat surprisingly, the judge refused to issue the injunction, calling the case "fascinating" and noting that there were some serious issues to be dealt with concerning first sale rights around copyright (whether or not you can sell a product you bought that is covered by copyright). However, the judge also made it clear that he thinks that the record labels are likely to win in the end, saying that their arguments "look to be compelling." He just didn't issue the injunction because there was no evidence of irreparable harm if the site stayed up, as detailed in the transcript embedded below.
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Filed Under: copyright, first sale, markets, mp3s, resale
Companies: capitol records, emi, redigi, riaa
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Re:
David Kravets has a story up at Ars Technica (and Wired): “Judge denies record label's request to shutter "used" MP3 store” (yesterday, Feb 7, 2012).
I haven't found time yet to read through the papers. Someone want to summarize? Beyond “iTunes account”.
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Real life dictates is would be easier to only copy to the server new files and just keep a count of how many times this has happened/vs how many times it was sold. Then if they noticed a large interest in a song they could buy a bulk of licences from the artist.
Else you would have a terribly inefficient index and a poor likely hood that the service would be usable.
Lets compare and Contrast Netlfix and Amazon Prime on the roku as a point of this.
Netflix organizes things in my chosen tittles, Ones it things I will be interested in, then sorts the rest by genre, with some helpful descriptors like "Witty Dramas with a Strong Female Lead"
Amazon on the other hand sorts by TV or Movie
then type, Then scroll through alphabetically.
Both have an index, but one is better for my habits. Which is what ReDigi is trying to do. I am more likely to by a used mp3 for cheap then a brand new one.
The point is ReDigi is just doing the next obvious step. To quote the Grave-robber in "Repo, The Genetic Opera", ' For every market, a sub market grows'. Part of basic economics. You can either embrace the submarket or try to squash it. History points out that trying to squash it is a mark of insanity as no one has successfully killed a sub market with the Market from which spawned.
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ReDigi does NOT use mp3's
ttp://support.apple.com/kb/HT1325?viewlocale=en_US&locale=en_US
But I suspect that is why ReDigi is only working with Apple's ACC files from iTunes store and not amy oter files like m3's wmv. avi. FLAC, OGG .....
.
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Re: ReDigi does NOT use mp3's
Another note is that Apple changed their policy to where people can redownload their entire purchased content in case something happened to it (hard drive crash?). Before there was no way you could redownload what a person had already paid for.
I thought that change was due to thir icloud service .
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Re: Re: ReDigi does NOT use mp3's
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ReDigi does NOT use mp3's
ttp://support.apple.com/kb/HT1325?viewlocale=en_US&locale=en_US
But I suspect that is why ReDigi is only working with Apple's ACC files from iTunes store and not amy oter files like m3's wmv. avi. FLAC, OGG .....
.
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ReDigi does NOT use mp3's
ttp://support.apple.com/kb/HT1325?viewlocale=en_US&locale=en_US
But I suspect that is why ReDigi is only working with Apple's ACC files from iTunes store and not amy oter files like m3's wmv. avi. FLAC, OGG .....
.
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Huh?
/sarc
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how it works
step 2. send ticket for a US holiday to the seller (or a holiday that forces you to cross the border into mexico/canada)
step 3. confiscate laptop and "search for terrorist stuff"
step 4. delete the appropriate mp3
step 5. allow the custom officials kids to use the laptop for 3 or 4 months until you confiscate something better
step 6. return laptop
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Re: how it works
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They need to decide. If it's a license then I should get free data replacements when the data becomes corrupt. If it's a product then I should be able to re-sell it.
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As you have pointed out, this is bullshit.
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However, it generally relies upon the concept that once you sell the item, you no longer have it. That's somewhat dubious in the case of MP3s, for understandable reasons it's difficult to verify.
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This of course wouldn't prevent a consumer from burning and ripping a CD so they can play it on a device that doesn't support that DRM scheme; and then selling the DRM auth.
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Rather, in the same way, it's illegal to do that, but it's really hard to catch. It would be easier to prevent it from happening by banning used sales. Hence the rights holders complain about this, but the courts have held firm on the first sale doctrine.
I'm not a friend of piracy, but that doesn't mean that all actions to stop piracy are a good idea. Sometimes even if they would prevent piracy, the drawbacks aren't worth the penalties. There are tradeoffs.
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Google basically says
If the mp3 is not a physical good, then it would not fall under the phonocopy clause. If it is a physical good then it falls under First Sale.
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No. Judge Sullivan doesn't have friends. (Or at least he doesn't take amicus briefs.)
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And free upgrades whenever they release a new service pack for bugfixes and security!
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The service died fairly quickly, but enough people signed up for it and they lost all their music they had 'rented'.
Up until this last year, if you lost your purchased iTunes music (hard drive crash anyone?) iTunes would NOT replace it. They expected you to rebuy everything (sometimes a discount could be negotiated). They have since changed that policy and will let people redownload their purchase (the iCloud?).
One other thing - Apple's DRM will only play on AUTHORIZED computers or accounts. Very recently iTunes has started selling non-DRM files - but that is not what ReDigi is doing. They only allowed iTunes AAC files which are DRM'd and require authorization on that computer to play.
So it is quite possible to de-authorize the original computer - even if the file remained there - and authorize it for another computer. But all that to save $0.015 / track?
But if you have to replace 1tb of music files for some reason ...
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As you cheer on the artists who win lawsuits against the labels that state that online sales are "license" sales rather than other types of sales, you have in effect set the standards by which the rest of the sale must be interpreted.
Specifically, a license can be non-transferable, non-resellable.
That pretty much solves the issue.
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However, these alleged licenses are hidden in fine print in non plain english terms and Conditions that any reasonable lay-person cannot understand let alone be aware of their existence. Therefore to call them licenses after contract of sale has been finalised is not only a false and misleading trade practice but also could result in pure forfeiture of contract meaning that both parties need to be placed in the same position as they were before contract entered into (equity) therefore the buyer would hand back licensed product and the seller would hand back monies given (plus other expenses for causing the forfeiture).
In other words if you are going to sell a product that is non-transferable, non-resellable explain this upfront in a manner that is unmistakingly clear or be prepared for any reasonable person to make the logical assumption that they can transfer and resell it.
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Yet when they talk about consumer's mp3's they are disposable, rented, licensed, yadda-yadda and don't follow the same rules they use for their "products" (like returning confinsgated legitimate product or files).
The game changes as they change which foot they are standing on. I'd like to get clear on which it is.
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No, this is one of those cases where the LABELS can't have it both ways. They have to decide what they're selling. If it's the music, then the first sale doctrine and all other usage rights apply. If it's a licence, there must be a clear-cut licence that customers are explicitly agreeing to upon purchase, and they have to pay the artists the higher going rate for a licence sale.
I'm fine whichever way they decide, and I'm sure most other here are as well. They just have to decide one way or the other - they can't keep on applying whichever standard happens to be the most profitable for them at the time.
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It's not "cute" anymore. No giggles.
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Surely that's worth... something?
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Transcript as PDF
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used data?
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Re: used data?
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Re: used data?
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Actually, on page 4 of the document the judge states specifically that he does not think that.
Either way, thank you for the article, and for posting the document, especially... it really was very interesting.
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Preplexing
I find it very interesting that EMI's Capitol Records want to make digital files an exception from the default resale concept when maybe here they are admitting that the whole file-sharing market is a very different beast.
With that said then yes the resale of MP3s is a deeply flawed concept from the technical point of view. All their IP rights come from how they physically package it, secure & encrypt it, brand & logo it. So any unapproved copies are usually easy for the eye to spot and those near prefect copies are what counterfeiting is all about.
Their digital problem is that they can't physically secure a file when any encryption and content control systems simply await the day they are hacked. And once hacked both decrypted and encrypted can be done as the hacker or skiddie likes.
I would say ReDigi is one brave company to take this on if not insanely foolish. Simple market demand has stripped away all content control concepts meaning that the whole scheme depends on user honesty. While many people would aim to be honest there are of course big exceptions.
Well the only solution is some kind of ownership scheme. An online database stands to be hacked and some physical card is both inappropriate to the digital world and right back to counterfeiting. So pick your poison.
This is a problem that does need to be solved if they want us to deal with only lawful media when we do indeed have the right to resell.
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Court Documents
Capitol v ReDigi: Documents
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Judging via Email
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2) Copy mp3 to a jump drive.
3) Upload
4) Sell
5) They delete any copies on my PC, but don't find the one on my jump drive.
Rinse and repeat
This will never fly as there is way to many ways to abuse it.
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And every technology has the possibility of being abused, does this mean we should give up and move back into caves? The system ReDigi is using is setup to be as secure as possible, the complaint is the same as game makers about the used game market... where is our cut!!!
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