ReDigi lawsuit raises questions of fair use and first sale in digital age

The Boston Globe has a report on the record labels’ lawsuit against ReDigi, the company that is trying to bring first sale rights to digital music (and, by extension, digital movie and book) sales.

I’ve mentioned ReDigi a number of times, from when it was first conceived (after several similar used-digital-goods efforts failed miserably) to when it launched to when the record labels complained to when they sued in January. ReDigi claimed fair use, Google filed an amicus brief, and a judge decided ReDigi didn’t have to shut down pending the suit.

If you’ve been following the story through those posts, there’s not a lot new here—the article basically summarizes ReDigi’s and the labels’ positions, and gets some quotes from legal experts who favor either side. However, one interesting thing I hadn’t known before is that ReDigi only works with music bought from iTunes, because iTunes does not have any license provision that explicitly forbids reselling the music. (Amazon, on the other hand, does.)

The argument still comes down to whether the resale can legitimately be considered a first sale issue, because the sale process for a digital good involves making a copy. It doesn’t matter if the existing file is deleted at the same time as the new one is made, so it imitates the process of a physical good changing hands—legally speaking, a copy is still a copy.

Also, ReDigi doesn’t have any way of knowing that the seller of the music hasn’t made a copy of it—by using a program that copies or transcodes the files into FairPlay-ID-stripped versions on another disk drive, or even just burning them to CD and re-ripping them later.

At any rate, I’d like to see ReDigi’s gambit succeed, if only because an expansion of consumer rights would make a good countermove to the way that technology has been increasingly used to diminish them lately. And if ReDigi does win in court, I expect there will be “used” e-book sales startups shortly thereafter. But I’m not terribly optimistic about the chances. At any rate, we’ll see what happens when it comes to the courtroom.

15 Comments on ReDigi lawsuit raises questions of fair use and first sale in digital age

  1. Actually, if making a copy were the real issue and it could be prevented, you wouldn’t be able to read an eBook, watch a DVD, etc. On computers, a copy of what’s on disk or in the cloud has to be copied in the RAM of the viewing device. It’s a transitory copy to be sure but it is a copy.

    The real issue is not the creation of a copy but the retention of it. In the case of software, you were supposed to sell the original disks, manuals and serial numbers or keys and not retain any copies when you sold it. This was established practice even though the suspicion that copies were retained kept certain people up at night.

    The challenge to ReDigi is to be able to assure rights holders or saner persons that no copies have been retained and, as we all learned, there are none so deaf as those who will not hear …

  2. I agree with you, Frank, except at the end — Is it really ReDigi’s responsibility to ensure with absolute certainty that no copies have been retained? This goes back other points I’ve read about this case which is, how does a used record store or eBay, Amazon, etc. ensure that the seller of a CD doesn’t first make a copy or 50 copies of the CD before selling?

    It seems ReDigi has a solid system in place to make it difficult for a seller to retain a copy — They have certainly made it more difficult to retain an MP3 than it is to retain a copy of a used CD.

    I think the consumer right issue is a valuable one — and it would be wrong to punish all consumers the right to resell something they have honestly and legally payed for simply because some may choose to break the law. This consumer punishment would never hold up in the physical realm.

  3. A great way to show your lack of journalistic fairness with that last paragraph, Chris.

    By the very definition of copyright, I can’t see how used digital copies can ever be sold legally.

    If some idiot judge declares used digital ebooks legal, all hope of policing stolen digital copies from being sold or posted online is gone because the thieves can declare that the books are used and won’t have to provide proof since there will be none.

    Most of the profit for creative works will go into the hands of the thieves.

    If that happens, authors and other publishing professionals will stampede away from writing toward more lucrative jobs like working at McDonalds.

    Long term, none of this will improve reader rights since they need something new to read and they won’t be getting anything from pros.

    As I’ve said on more than one occasion, publishing is an engine and money is the gas. If you take enough away, the engine will stop. That’s not good for anyone who reads or writes.

  4. So Marilynn, all of your readers are inveterate thieves who cannot be trusted to honor your copyright? Or is it that you’d really prefer a Pay Per View model?

    Customer vs Supplier. Reader vs Writer. What a cliff hanger.

    Events in Europe, reported here, seem to suggest that used copies of things can be re-sold.

  5. No, I’m suggesting that used copies which are in fact stolen will confuse things for people who want to do the right thing for authors.

    Authors are having to deal with this right now with those who sell eBay collections of current novels and claim this is legal. For every illegal dealer we stop, a dozen appear with the very same collections, and eBay is raking in the profits while refusing to stop the theft. Meanwhile, the buyers haven’t a clue they are buying stolen items.

    I’m saying that all of us currently trying to stop the theft of our works from illegal sites that sell them or make money off memberships will find it impossible to stop true theft when they claim that they are selling used if digital used becomes legal. It will be the ultimate protection for them.

    If the law suddenly gives every advantage to the thieves by allowing them to claim they are selling used and none to the person who creates the work, the war for copyright is lost and with it, all reason for anyone to try to write for profit.

    I’m sure someone here would quip that writers should write for nothing because anyone can write, but, as anyone who has gone through editorial slush piles and fanfic sites can tell you, that’s not the truth.

  6. Marilynn, we don’t have any crows around here so there’s no need to put up straw men.

    ReDigi’s sales work on the principle of using watermarked files that are provably legally sold, and deleting them from the old computer while copying them onto the new as money changes hands for the “used” copy. Most of the files you see pirated on the Internet are non-watermarked copies from some other source—if they were watermarked, it would provide a trace right back to whoever bought them in the first place. Those files will continue to be illegal no matter what the judge decides about ReDigi’s model.

    But if ReDigi’s model is determined to be fair, we might have things like Amazon using its 1984 you-don’t-own-that-e-book-anymore power to revoke your ownership if the DRM’d copy of a book you bought and give new ownership to someone else, after you “sell” it to that person. Just like what happens with a physical used book in a bookstore. And people knowing they can resell the e-book if they don’t like it might mean they’re more willing to take a chance on more new e-books, meaning more money goes to publishers and authors.

  7. Since the article here at Teleread refers to ebooks, I’m talking about ebooks, NOT computer programs.

    Argue all you want about how this will be great for computer software, maybe it will be, but it will not be great for ebooks and those who sell them legally if used digital becomes legal for all digital items.

  8. Let’s say that I spend a lifetime buying digital copies of books and I wish to bequeath them to my heirs. Are those copies not mine to do with as I please? I simply cannot retain those copies beyond the grave so what’s the real issue here?
    It’s not about piracy but it is all about defeating the doctrine of first sale and those who depend upon it such as librarians, the poor and others. It’s about generating more and steadier cash flows.
    Fine. If all you’re really doing is renting a copy of the book to me, say so and price it accordingly. It’s the deception that is most irritating.

  9. The copyright extremists have been arguing for years that digital content is precisely identical to analogue content, and that there’s no difference between copying a file and stealing a physical CD, book, or DVD. Courts are now ruling that purchasers of digital content have the same rights as purchasers of analogue content.

    I do love me some schadenfreude.

  10. Binko Barnes // July 4, 2012 at 11:34 pm //

    Actually the copyright extremists have been arguing that digital is identical to analog when it suits them and then arguing that digital is different from analog when it suits them.

    Corporations are amoral entities. They care nothing for truth, consistency or the public good. They exist only to generate profits for stake holders.

    We live in a warped world where laws are written and passed in close conjunction with corporate lobbyists while the public is excluded from the process.

    In a just form of government the representatives of amoral corporations would be barred from participating in the political process entirely since they have no loyalty to the nation, the people or any form of morality.

  11. Frank, your heirs won’t give a rat’s ass about your digital books with their boring so-yesterday stories and narratives so don’t sweat it. Your disintegrating, beloved paperbacks will go into the garbage, and your hardcovers, when they prove not to be valuable first editions, will go to a garage or library sale. The day when a personal library was treasured has long since past.

    And, if you’d bother to read the terms of sales for digital books you’ll see that you are “leasing” them, not buying them, despite the “buy” button you pushed.

  12. Binko Barnes // July 5, 2012 at 5:09 am //

    When I press “buy” for an ebook on Amazon there are no more terms of sale presented than when I press buy for a toaster or a TV.

    Marilynn, I’ve seen you assert on this website that we are “leasing” ebooks and not buying them according to some mythical “terms of sale” that you imagine exist.

    How about if you tell us where specifically these terms of sale are located, when they are presented to the buyer and how the buyer agrees with them? I “buy” an ebook, it downloads to my Kindle and the ebook has standard copyright boilerplate. That’s it.

  13. Mythical terms of sale? Kindle License Agreement and Terms of Use

    Use of Digital Content. Upon your download of Digital Content and payment of any applicable fees (including applicable taxes), the Content Provider grants you a non-exclusive right to view, use, and display such Digital Content an unlimited number of times, solely on the Kindle or a Reading Application or as otherwise permitted as part of the Service, solely on the number of Kindles or Other Devices specified in the Kindle Store, and solely for your personal, non-commercial use. Digital Content is licensed, not sold, to you by the Content Provider. The Content Provider may include additional terms for use within its Digital Content. Those terms will also apply, but this Agreement will govern in the event of a conflict. Some Digital Content, such as Periodicals, may not be available to you through Reading Applications.

    Limitations. Unless specifically indicated otherwise, you may not sell, rent, lease, distribute, broadcast, sublicense, or otherwise assign any rights to the Digital Content or any portion of it to any third party, and you may not remove or modify any proprietary notices or labels on the Digital Content. In addition, you may not bypass, modify, defeat, or circumvent security features that protect the Digital Content.

    [There’s plenty more.]

  14. Binko Barnes // July 5, 2012 at 3:06 pm //

    Thanks Beevster! Damn, that’s pretty restrictive even for digital content.

    When is this presented to the customer? I”ve purchased a couple of Kindles but the last one went straight to my wife. Personally I’m using a Sony ereader right now.

    So I would guess that all of this is presented to the reader when the Kindle is first activated. I’m certain that nothing like this is displayed when the customer actually purchases an ebook.

    It’s hard for most people to wrap their head around the concept that they are spending a LOT of money for ebooks and only receiving a very limited right to personally view the content.

    But the world is moving towards streaming media on demand and I suppose ebooks will go this direction eventually. My wife just discovered Law And Order on Netflix and now she has over 400 episodes she can watch whenever it suits her.

    Similarly I’d pay a monthly subscription in order to have access to a broad selection of content for my ereader. Why go through the charade of pressing a “BUY” button when you are only receiving an extremely one-sided and limited license to read.

  15. Clytie Siddall // July 7, 2012 at 4:21 am //

    A one-sided and limited licence which also costs you more (sometimes 2-3 times more) than a paperback which you actually own and can legally share, give away or resell.

    I am so sick of seeing new popular-fiction ebook titles costing nearly 3 times the new paperback price. “Outrageous Kindle price” is a heavily-used tag on Amazon: in a tag cloud, it would stick out like a massive bruise on the fresh face of “accessible” digital content.

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