For Digital Copyright First Sale Doctrine, “Move” Does Not Equal “Copy+Delete”

by Dennis Crouch

Capitol Records v. ReDigi (2nd Cir. 2018) [16-2321_opn]

ReDigi designed its business to take advantage of the first sale doctrine of copyright law — particularly creating a market for resale of lawfully purchased digital music files.  In the system, ReDigi first verifies that a song was lawfully purchased (e.g., via iTunes) and then migrates the digital file from the user to ReDigi servers. In the process, ReDigi first locks the song from use on the user’s system; then breaks the song into packets; deletes the song on the user’s computer; transfers the packets to the ReDigi system (copy + delete); and finally reassemble the packets on the ReDigi server.  Each packet is deleted immediately upon transfer — and so results in an unrecoverable failure if some of the packets don’t arrive at the destination. (In that case ReDigi compensates the seller).  The seller can keep using the song until it is sold — at that point the system effectively transfers possession to the new party.   Note here, that this is how the system is designed. Some folks have hacked around these precautions and so some duplicates are getting through — allowing the seller to keep listening to the music.

Recording companies sued  and won.  On appeal now, the 2nd Circuit has sided with the copyright owners — holding that the first sale doctrine does not apply here because DeRigi is making copies (first sale only applies to the actual copy sold).

In the course of transferring a digital music file from an original purchaser’s computer, through ReDigi, to a new purchaser, the digital file is first received and stored on ReDigi’s server . . . At each of these steps, the digital file is fixed in a new material object “for a period of more than transitory duration.” Cartoon Network. The fixing of the digital file in ReDigi’s server, as well as in the new purchaser’s device, creates a new phonorecord, which is a reproduction. ReDigi version 1.0’s process for enabling the resale of digital files thus inevitably involves the creation of new phonorecords by reproduction. . . .

We conclude that the operation of ReDigi version 1.0 in effectuating a resale results in the making of at least one unauthorized reproduction. Unauthorized reproduction is not protected by § 109(a).

The court then went on to hold that the use is also not a “fair use.”  In the analysis, the court correctly concluded that the ReDigi secondary market is likely to undermine the marketplace for new digital files from the Record Company.  However, I believe the court used the wrong baseline — the focus here should have been on whether the copy+move resale is a fair-use extension of the first-sale doctrine.

73 thoughts on “For Digital Copyright First Sale Doctrine, “Move” Does Not Equal “Copy+Delete”

  1. 8

    You project confusion.

    You do so in error.

    I get that you want to use the lingo loosely – and that others use the lingo loosely. But even here with the addition of the Handel quote, you actually reach more to what I posted, differentiating “buy” in the ownership context. (“But we are not buying the product itself“) – I “get” that you are upset about what you perceive as my throwing “snark” at you, but my post was – and is – still correct.

    If you read Handels words carefully, he does not say that he BOUGHT a license. He says that he pays for a license. In other words, he licenses an item and does not BUY anything.

    1. 8.1

      (this was in reply to me shifting historical pseudonym friend, and has been reposted below in its correct place)

      1. 8.1.1

        The important thing is not to project confusion.

  2. 7

    The court has mischaracterized the product being sold. If the sellers were selling US currency, it would not matter which serial numbers appeared on the bills, because money is fungible.

    Likewise, a digital song (or movie, image, drawing, or text etc.) is fungible so long as the digital sequence is unchanged. It should not matter which set of transistors are processing the digital sequence as a measure of the sequence itself. Digital music is fungible- any copy is as good as any other so long as they are identical.

    What matters (as usual) is the consumption of the information. If the original buyer can no longer consume it after a transaction to the next buyer, the auspices of a First Sale have been achieved. The actual bits and bytes are fungible and therefore irrelevant.

    1. 7.1

      For the legal question at hand, I think that fungibility is not the driver.

      I “get” what you are saying vis a vis digital goods (and the copy not being distinguishable from the item being copied from), but with a charge of copyright infringement, the court had to look at the “currency serial numbers” in a sense.

      As many of my posts on this thread indicate though, the court did not look at THAT issue seriously enough.**

      Take the Squirrel’s “book in a box” example.

      That box may be an equivalent of a copy machine. Photocopying a book is copyright infringement, and it matters not at all if one destroys the original and only keeps the photocopy. (Your “consumption” angle is not accurate).

      Is the photocopy and the original “fungible” in the sense that you advance that term?

      The destruction of the original book would satisfy your consumption item, but copyright infringement would still be present.

      Likewise, with a book, more than one may consume at the same time (reading over my shoulder), and such would not be copyright infringement (no copy in that situation).

      **returning to the fungible nature of digital goods, there are items that do draw on the “fungible” aspect – items related to (as I have put it) ALL digital products are “copy” products.

      When I buy (not rent, lease, or license) a digital item, what is it that I buy? Do I buy (as the court here started down a path) the fixed media from the seller that contains the “first copy” actual item (to which a copyright Right may actually attach)? Does the seller go into their computer system, remove that media, and ship the physical media to me? Can the first owner sell again that which was sold to me?

      Additionally, the court here seriously abandoned their duty in the Fair Use analysis (Factor 2, the nature of the copyrighted work) is critical to the legal questions.

      1. 7.1.1

        Photocopying a book is copyright infringement?

        I don’t think so. Selling the photocopy would be, but making the copy for yourself is fair use, AFAIK.

        Of course, the photocopy is not fungible with the original, as a digital ‘copy’ would be.

        The intent of the doctrine of first sale should nullify a statutory interpretation that does not support that intent.

        1. 7.1.1.1

          Photocopying a book is copyright infringement?

          I don’t think so. Selling the photocopy would be, but making the copy for yourself is fair use, AFAIK.

          Fair use is a very fact-specific defense, so I would not wish to argue that photocopying for your own use is never fair use, but it is certainly not a slam dunk case that this is fair use. American Geophysical Union v. Texaco Inc., 60 F.3d 913, 917 (2nd Circuit 1994).

        2. 7.1.1.2

          There is a difference between photocopying a page and the entire book (especially in the given hypo, in that the photocopy is like a full duplication, not just the page captured on a 8 1/2 by 11 piece of paper).

          Good luck with a Fair Use argument there (you will not win).

    2. 7.2

      The court has mischaracterized the product being sold. If the sellers were selling US currency, it would not matter which serial numbers appeared on the bills, because money is fungible.

      I like the way you think here, Martin, and I wish it were that simple. Unfortunately, when the court is applying a statute written before the existence of digital “products” to adjudicate rights in those “products,” one is stuck with a technological micharacterization of the product. The statute speaks of “a particular copy or phonorecord lawfully made” (emphasis added). Notwithstanding that all such copies are fungible, the statute concerns one “particular” copy. As Congress has bid, so must the court do.

      1. 7.2.1

        Greg, the statute can’t actually be applied to the situation because a “copy” of a digital record cannot actually be made. There can be no copy, because there can be no “original”. There is only the singular sequence devised by the author. If copy and original cannot be distinguished, and neither exist except as volatile configurations in RAM or packet streams (signals), the statutory interpretation should be that which supports the intent of the doctrine of first sale: when the copyrighted item passes from one hand to the other, so does the right to consume the material . Without a copy, but with a sale, the right still passes.

        If and when this gets to the Supreme Court, that’s how it will be decided.

        This interpretation cannot stand while “sellers” of digital music proffer content to “buyers” of digital music. If they want to say “rent a song” instead of “buy a song” that’s another story, of course.

        1. 7.2.1.1

          There can be no copy, because there can be no “original”. There is only the singular sequence devised by the author… [C]opy and original cannot be distinguished, and neither exist except as volatile configurations in RAM or packet streams (signals)…

          This seems too clever by half to me. For one thing, “copy” and “original” definitely can be distinguished. Considered as information they might be conceptualized as abstractions, but each is tethered to a physical existence (one moving around southern California in my iPod, the other on a server somewhere in Cupertino). For another, the same its-all-an-abstraction argument could be stretched even to old vinyl records (if I have two records in front of me, both of which can be played to facsimilate the sound of Maria Callas’ 1952 production of Traviata in Mexico City, how do I know which is the “original” and which the “copy”?), but no court would let you escape Rule 11 sanctions if you tried to make that argument as a defense to infringement.

          If and when this gets to the Supreme Court, that’s how it will be decided.

          Wow. You are far more optimistic than I about the ability of the justices to understand the technical details at stake and rule on them accordingly. I doubt that the argument that you are advancing here would even make it into an amicus brief, let alone one of the parties’ briefs.

          1. 7.2.1.1.1

            This seems too clever by half to me

            That’s twice as clever as I actually am.

            Considered as information they might be conceptualized as abstractions, but each is tethered to a physical existence (one moving around southern California in my iPod, the other on a server somewhere in Cupertino)

            This is not true at all. Your ISP may have it cached since the last time you played it, and the very function of the Internet is to spread the packets all over the place so the physical loss of the item does not lead to logical loss.

            The item has no physical existence as a singular item, but the consumption of the item is a singular physical experience. One of those is the intent of the first sale doctrine.

            For another, the same its-all-an-abstraction argument could be stretched even to old vinyl records (if I have two records in front of me, both of which can be played to facsimilate the sound of Maria Callas’ 1952 production of Traviata in Mexico City, how do I know which is the “original” and which the “copy”?

            That argument cannot be extended to any physical media. The records are discrete items that can be identified from each other a billion ways with an electron microscope. The bitstreams are zeros and ones, and every zero and every one is precisely like every other zero or one.

            The entire meaning is into whose ears the song is being played, and the status of that person, rather than any particular status of the bitstream in question.

            1. 7.2.1.1.1.1

              This is not true at all. Your ISP may have it cached since the last time you played it…

              If your point is that there well might be more than two copies, I agree, but how is that relevant. Each copy has some physical existence. My iPod does not mystically partake of Maria Callas’ ethereal essence. There are actual atoms that have to be rearranged to store that information. There really are (and, in a world governed by physical laws, must be) “particular” copies at issue, as the statute uses the terms.

              1. 7.2.1.1.1.1.1

                Greg, the bitstreams are not unified and whole (i.e. a “copy”) until they flow. They are disassembled and reassembled any number of times. They have no discrete existence until the moment you hear them, or thereabouts.

                1. What does “unified and whole” have to do with “copying”? If I copy a 256 page book 8 pages at a time and stash each octet of pages in different location, that does not avoid infringement. Who cares if different packets of information are saved in different physical patches in my iPod’s memory? It is still a physical embodiment of the same information—i.e., a copy.

                2. Greg it’s technically possible for one “copy” to exist and for all consumers to use that “copy” without that “copy” ever being fully reassembled as it is streamed to end-user devices.

                  The statues simply never anticipated the physical reality of a bitstream, so attempting to force old-timey notions of what a “copy” is into jurisprudence that nullifies the intent of the first sale doctrine is an absurd result.

                  Record companies can’t have it both ways. They can’t “sell” music without the doctrine being applicable. That’s my point, and I don’t think you have refuted it, yet ;-)

                3. Marty,

                  You are running right smack into the semantics that I ran into below.

                  “Buy” is being used without regard to the ownership context.

                  But “buy” (with ownership) and “lease” or “rent” or “license” each have different legal impacts.

                  And on top of all that, your attempt here to deny the reality of “copy” just does not help – fungibility is not a driver when the precise legal issue IS – as you put it – an “old-timey” thing. I know that you like your theories, but those theories do not fit this legal issue (your hammer is not the right tool for these screws).

                  The plain fact of the matter is that it is NOT that the digital item cannot have copies, it is that not only can it have copies, it can have perfect copies.

                  But perfect copies remain actual copies.

                  They do not cease to be copies just because they are perfect copies. The reality of a copy being made is not negated just because one cannot tell the differences (or lack thereof) of the parent and child apart. The law of copyright simply never had within it the notion that copies must be somehow different in order for the law to hold.

                  The intent of the first sale doctrine may be nullified through “contract” manipulations. One MAY contract away the ability to either enforce copyright rights, or to enjoy the protections of limits of copyright rights.

                  This is also why when the topic comes up that I push for a reassessment of the effects of “fake” licenses that are licenses only in name and that are in reality sales.

                  But to return to the point here, in any true sale (be it called a rose, or smells like a rose), there is a “release” of the item into the stream of commerce, and secondary markets are not only a natural outcropping of that, but are a desired natural outcropping of that.

                  Where – as here, in the entire realm of digital goods, copying is an inherent and necessary function for the value of the sale of the item, the surrender of the copyright protection is called into play by the willingness of the creator to volunteer his item to partake in the stream of commerce.

                  Replication (and exact replication at that) of digital goods is extremely problematic exactly because “copy” is inherent in the good (and normal use of the good).

                  This case was decided woodenly – and without deep regard or appreciation of either the technology of the good itself, or of the processing of that good for a “true” secondary market application (as exhibited in the empty Fair Use Factor 2 statements in the case).

                  Not yet brought up (so I might as well do so here), is the parallel to the Monsanto v Bowman seed case, wherein the seed too is an object of replication as part of its own natural use.

                  Ask yourself this: is there consistency in viewpoint on how to handle self-replicating/no difference between parent/child between the two matters?

                  Should there be?

                  Also worth bringing up is the “copy” case that squelched another attempt at subverting secondary markets (Kirtsaeng).

                  What you really have going on here is a “business model” fight. Follow the money in that fight.

                4. anon you dont want to talk about copies, then you proceed to talk about copies. fine.

                  “The plain fact of the matter is that it is NOT that the digital item cannot have copies, it is that not only can it have copies, it can have perfect copies. But perfect copies remain actual copies”

                  No, a bitstreamed delivery of a file (song, movie, etc.) means that ONE instance may exist for all users. There is never a “copy” made, unless the “copy” is considered a rolling process as the item is consumed. It’s consumed when the player creates the chemical or mechanical means to registers in the sensory systems of human beings.

                  This process does not necessarily comport with the plain and ordinary meaning of the word “copy”, and if this company redesigned their process to a proxy stream could be redirected to them and “resold”, it could meet the literal terms of an anachronistic statutory provision.

                  The plain and ordinary meaning of the word “buy” is to obtain ownership rights. An item “bought” is an item you can dispose of, or you don’t own it. Semantics are important in trying to apply laws in a just manner.

                5. Marty,

                  Your odd insistence on inserting this “consume by human” notion absolutely prevents you from getting close to understanding the legal issue at hand.

                  It is unnecessary (we are talking about copies of a digital item — not about any use of copies of the digital item), and worse, it is keeping you from intelligently contributing to the conversation (if you stopped, dropped your hobby horse, rolled it away, you may see that we might even be on the same page in certain aspects here)

                6. Record companies… can’t “sell” music without the doctrine being applicable. That’s my point, and I don’t think you have refuted it, yet ;-)

                  Yes, I agree that every time a record company makes a “sale,” the first sale doctrine necessarily applies. They cannot avoid the first sale doctrine.

                  The point of our disagreement, however, concerns what it means for first sale to “apply.” If we want an easy example of an application of first sale, we can think of buying a copy of Harry Potter and the Sorcerer’s Stone. When I buy my paperback copy, I can resell that same paperback copy and Scholastic publishing has no copyright cause of action against me. I am not, however, permitted to use that paperback that I purchase as a template to make a new copy. Indeed, even if I burn the first copy after making my second copy, the act of copying violates the copyright act, and now Scholastic does have a cause of action against me.

                  So, now turning to the case of the purchased MP3 file (as in the ReDigi case), once I download the MP3 file to my iPod, I have the right (under the §109 first-sale provisions) to sell that copy of the MP3 file. That is to say, I am permitted to sell my iPod—with the Maria Callas MP3 file on it—and Warner Classics Records has no ability to use the copyright laws to stop me from selling that iPod (although they would be able to use the copyright laws to stop me from selling that iPod if it contained a bootleg MP3 file of the same recording).

                  ReDigi, however, is not acting as a broker for the secondary market sale of iPods with downloaded content. ReDigi is acting as a broker for the sale of the MP3 files. In other words, ReDigi has put itself in the same position as my copy-the-novel,-burn-the-original-paperback hypo above. The copyright laws do not permit this. In the case of MP3 files, I think that the copyright laws should permit this, and therefore Congress would do well to amend §109 to permit this. I cannot agree, however, that §109—as written—is inapplicable to the MP3 context. These files move by copying in the same sense that VHS recordings move information content by copying.

                  The law is the law, and the law (as presently written) does not allow for what ReDigi is doing. More is the pity.

                7. No, a bitstreamed delivery of a file (song, movie, etc.) means that ONE instance may exist for all users.

                  To the extent that some of us are talking about downloaded files and others are talking about streaming, we are talking past each other. The ReDigi case that is the source of this discussion does not concern streaming services. It concerns downloaded MP3 files. I do not see that first-sale comes into a dispute about streaming services, because first-sale only applies for an owner (“the owner of a particular copy… is entitled… to sell…” emphasis added). If one does not own the particular copy of the work in question, then the first-sale provisions of Title 17 are not invoked in the first place.

                8. Greg, the iPod example of selling a copy of an MP3 file is not in accordance with the Apple licensing agreement with regard to copyrighted material. You have a right to download a copy of a file incidental to the licensing agreement, such as to facilitate rendering of a sound file for private and noncommercial use, but you do not own that copy. One reason I still get most of my music on compact discs.

                  I notice that Apple was not a party in the DeRigi case. I’m looking at the District Court documents but it’s not clear where misinformation about iTunes got into the record. The original complaint discussed Amazon, which does sell actual copies of MP3 files, subject to numerous restrictions. Anyhow, if “iTunes” is replaced by “Amazon Music” in the Second Circuit’s opinion, the statement of facts would be accurate. As would your example, if you happen to have Amazon MP3 files in your iPod’s library.

              2. 7.2.1.1.1.1.2

                Thanks for the clarification, Mr. Morse.

                1. Also, I don’t have an iPod, so this is more than just a hypothetical question, but is one strictly limited to play iTunes supplied files on an iPod? Would I not be able to supply actually owned files (including perhaps files of my own creation of my own registered copyright music creations) to the media player device?

                  Would that not then make Greg’s thrust still pertinent?

                2. I don’t have an iPod, so this is more than just a hypothetical question, but is one strictly limited to play iTunes supplied files on an iPod?

                  Pretty sure you can play them on any device that’s running iTunes.

                  Would that not then make Greg’s thrust still pertinent?

                  Good grief man get a copy editor.

                3. As it happens, I did not download any Maria Callas from iTunes. All of my MP3s of Maria Callas are downloaded onto my iPod from other websites (whose adhesion contract terms I did not carefully read, so I cannot say what were the terms).

                4. Yep. I assumed too much. If Greg obtained media files from sites other than the Apple store then his mileage may vary.

  3. 6

    I am neither a copyright nor a computer expert, but isn’t this case necessarily wrong because, even if somehow the first transfer of the song from iTunes (for example) to my computer is a sale, isn’t the song copied and deleted all over the place?

    When I buy it, and it goes from my computer to my mp3 player–my song has been copied and moved (especially if I no longer keep a backup on the computer).

    If the copy remains on the computer, my song is copied into RAM.

    And, I would think more importantly, if I defragment my harddrive (and maybe even if I don’t), isn’t the song copied and deleted from one location to another location? At which time, I am no longer in possession of the song I purchased, according to this decision.

    Make sure you never defragment your harddrive, because if you do, you aren’t in possession of the song you purchased.

    1. 6.1

      All of the “copies” that you reference here are explicitly or implicitly sanctioned by the license agreement(s) between the copyright holder and first buyer (this might include various intermediary license agreements, for example between a record label and iTunes).

  4. 5

    I do not like to say so, but I think that if I were on the second circuit, I would have decided this case just as they did. I agree that “the focus here should have been on whether the copy+move resale is a fair-use extension of the first-sale doctrine.” However, in the copyright context the first sale doctrine is codified statute (17 U.S.C. §109)—not merely judge-made common law. The court should rightly feel hesitant about changing the reach of first-sale in the copyright context when nothing about Title 17 has changed.

    I think that the morally right answer here is that the copyright laws should permit that which ReDigi is trying to do (setting aside the hackers who “sell” their copies of songs while retaining the ability to play the same “sold” music). Congress, therefore, should amend §109 to honor that intuition. Until such time as Congress effects such an amendment, however, the courts should rule against ReDigi.

    1. 5.1

      However, in the copyright context the first sale doctrine is codified statute (17 U.S.C. §109)—not merely judge-made common law.

      Is that in the same sense that patent eligibility is codified statute 35 U.S.C. §101 (per the Act of 1952) —not merely judge-made common law…?

      Or is it only the Supreme Court Justices that dismiss statutory law?

    2. 5.2

      The court should rightly feel hesitant about changing the reach of first-sale in the copyright context

      Seems to me that, for all practical purposes, the court here did change the reach of first sale in the copyright context.

      They pretty much admit doing so in a footnote. What they did was create a judicial exception to the first sale doctrine in this particular context only (they wish, anyway) because without that exception (so the argument goes) the original copyright owner would be more susceptible to piracy.

    3. 5.3

      The court here was asked to make some paradigm-shifting changes to the extension of traditional copyright protection into digital media. The opinion, to me, tacitly states: “This is above our pay grade.” It just seemed unwilling to sign on to an analogy that could have far-reaching consequences in digital media.

      I’m undecided about whether the court’s reluctance is reasonable discretion or stodgy ludditry. However, I feel much more strongly that it’s deeply regrettable that this prospect – the legitimacy of ReDigi’s business model – had to be resolved by a court, as a non-technical and unelected arbiter, in the context of an infringement suit with dire consequences.

      It’s well-established that media companies are habitually resistant to any new business models involving their media. That’s even true of new business models that would vastly boost their revenue streams – the DVD, the iPod, and iTunes / Amazon MP3 sales all encountered major resistance. It’s *way more* true of markets like resale, which of course do not benefit media producers but enormously benefit consumers. And if we have to rely on Congress to amend the Copyright Act to legitimize these new markets… well, it’s just not gonna happen, is it? And every time it tries, the details get mangled: SOPA, PIPA, ACTA, CISPA, DMCA, etc.

      I think we need a new arbiter to handle the transition of copyright law. Maybe a commission within the U.S. Copyright Office to receive requests, have them evaluated by a balanced panel of experts, and formulate recommendations to Congress. Its commission should be to promote the faith extension of copyright peotection over digital works while promoting the rich new uses and business models that are enabled by digital media, and that the public should have an entrepreneurship right to develop.

      1. 5.3.1

        I agree with everything you say here, Mr. Stein. Nevertheless, if Congress is not going to amend §109 to resolve the problem (and I agree with your explanation as to why Congress is unlikely so to do), then it seems equally unlikely that Congress will create a new administrative agency to solve the problem.

        Meanwhile, I think that such a new agency would be constitutionally supportable. I expect, however, that legacy media companies would attack the constitutional supportability of such an agency, and the new Federalist Society office at 1 First Street, NE in Washington DC might well see such a case as an excellent opportunity to reintroduce the nondelegation doctrine onto the contemporary administrative law scene.

      2. 5.3.2

        Mr. Stein, extend that commission’s ambit to patent law as well.

        The problem is identical; the inability of statutory language written before bare information was marketable to handle now multi-billion dollar markets for various species of information.

        1. 5.3.2.1

          Interestingly enough, the problem appears to actually be the opposite.

          For copyright, the “landed” Big Corp’s want to use the protection system in order to “keep others out.”

          For patents, the “landed” Big Corp want to abolish the use of the protection system in order to “keep others out” (or at least, NOT compete on innovation factors).

  5. 3

    Just curious, but the original sale ALSO was a “copy” action (local to my hard drive). Please correct me if I am wrong, but are not all digital transfers really only having local copies made and not actual shipments of a (digital) good.

    I buy a digital item from a record company – they are not “selling” the original digital version to me so much as having my local computer configure — at the local computer — the digital item all anew.

    The digital process only makes copies – in both the ReDigi process and in the original record company sales process. The electronic “structure” is not actually sold and shipped. Ever. Not by ReDigi. Not by the record company. Is that just not how the technology works? After all, the allure of the digital good IS the fact that copies have every bit the fidelity of the original (which does not leave the record company’s domain. The record company does not make upteen separate digital items and then ship each digital item. When they sell something, they keep the original digital item and provide a copy to you (being configured on your end).

    The entire digital market is only a “copy” market.

    1. 3.1

      are not all digital transfers really only having local copies made and not actual shipments of a (digital) good.

      Generally speaking this is true. The distinction between the “original” sale and the sales in this case is that — presumably — the “original seller” (i.e., the artist), in exchange for royalties, directly grants the “original distributer” the right to make copies for the purpose of selling those copies to others.

      1. 3.1.1

        So then, with a digital good, what has the average consumer actually bought from a record company?

        Every time I load a “song” which is a digital item into a digital item player, am I not making a copy? Did I buy the ability to make these (unlimited) copies?

        1. 3.1.1.1

          With music, you can make copies for private use. That’s in the statute.

          1. 3.1.1.1.1

            and other digital goods….?

            1. 3.1.1.1.1.1

              and other digital goods….?

              Not my concern at the moment. This case involves music files.

              1. 3.1.1.1.1.1.1

                Would that be asking for too much thinking?

  6. 2

    Say I had a box. You stick a book in the box. The box makes an exact duplicate of the book, but the process destroys the original. You open the box and retrieve the duplicate. Is that copyright infringement? Should it be copyright infringement?What if during the process a page and its duplicate (not the entire book) exist simultaneously for 200 microseconds (while still in the box where no one can observe)?

    This case has me torn. I think the judge, when describing the copyright implications of the technical process, is technically correct (which is usually the best kind of correct). However, it seems like this ruling obliterates the spirit of the law. The first sale doctrine should apply to digital goods. However, the technical process of exercising your rights is a technical violation of copyright. However, the rights that are encompassed by the first sale doctrine should trump the technicalities of making a tansitory copy.

    1. 2.1

      Verily.

      Even the screen view you are enjoying now IS a copy. Hit the computers’ “refresh” button – you have just made yet another new copy.

    2. 2.2

      The box is an interesting way of looking at the issue. Another way to look at it is to ask what is the practical difference between me selling you my digital copy, in which case I copy the file, send it to you, and then delete the copy from my computer, versus me hiring a middle man to do the same thing (because, e.g., my hands are paralyzed)? That seems to me to be what’s happening here. Is the former activity illegal under copyright law? I hope not. At the very least, both of these actions should be fair uses.

      1. 2.2.1

        The box is an interesting way of looking at the issue

        I had to laugh while reading this post of yours.

        Digital copies and the Big Box of Electrons, Protons, and Neutrons (which lampoons your “logic” on eligibility concerns) are more than merely interesting examples of similar things. Sure, one here is being used to discuss copyright issues, but make no mistake, the patent issues involved with Big Box of elementary particles and the box here for digital goods have a nexus – a nexus that speaks ill of your 101 position.

        1. 2.2.1.1

          This Nexus character needs to chill out.

      2. 2.2.2

        What if I copy the file onto a flash drive while deleting it from my computer, send you the flash drive, and you then copy it onto your computer while deleting it from the flash drive. There is a lot of copying going on there. Arguably, the copy you make to the flash drive is not intended for personal use, so is that copy an infringement?

        1. 2.2.2.1

          By extension from this case, I don’t see how you can re-sell a purchased digital copy of a song without infringing. I assume the authors of this decision made some effort to deal with this issue…?

          1. 2.2.2.1.1

            It entirely depends on how you purchased it (or to be more precise, what you paid for: did you pay to license an item, or did you pay to lease or rent? Or did you buy (in an ownership context)?

  7. 1

    the focus here should have been on whether the copy+move resale is a fair-use extension of the first-sale doctrine.

    Agreed. To borrow the ridiculously anachronistic language used by the court, if I buy a “phonorecord” of music, I have the right to re-sell it (for any price I choose). In that regard, I can tape the phonorecord for my own personal use and give the phonorecord to someone else to store until I’m ready to re-sell it. As long as the third party isn’t listening to my phonorecord, there’s no copyright violation in that at all (doesn’t even get to fair use).

    In this digital version of the same scenario, I’m not even keeping a copy of the file. I’m transferring my digital file to a third party who is going to transfer the file to another party (the sale). Of course that involves “making a copy” of the file because that’s how digital information is transferred. In this case, my copy is destroyed and I’ve lost my rights to listen to it. The middleman doesn’t listen to it, but just transfers the bits of info to the third party. How can this not be fair use? This is plainly an instance where the rights holders are abusing copyright law to force consumers to re-purchase digital copies directly from them (or their preferred sellers). Ridiculous.

    1. 1.1

      It gets even more ridiculous than that first blush when you realize that your first purchase is ALSO not a true purchase, but instead is that same “copy” attribute.

      As you note, “that’s how digital information is transferred.”

      Do we look at transfer of the digital good that one buys from a record company? Did you “buy” what is actually on your local device? Or is that merely a copy of the digital item that you bought (with the original digital item remaining in the control of the record company?)

    2. 1.2

      The problem with any analogy between a phonorecord and digital media is that they are not analogous in the ways that matter. One does not buy digital media in the same way that one might buy a CD. Instead, one buys a limited use license to digital media that is not tied to any particular tangible article. Generally, digital media rights are tied to a user/account.

      Thus, the issue isn’t really about the physical reality involved in moving data from one place to the other. The issue is whether digital media rights are transferable.

      1. 1.2.1

        I’m willing to accept for the sake of argument that everything you say about digital media rights is true (while knowing that many, many exceptions exist). But if that’s the case, then we’re looking at a contract issue between the original rights distributor and the buyer/listener who subsequently sells, and not a copyright case.

        1. 1.2.1.1

          But copyright is folded into the equation because copying is necessary to even use digital media (even on one machine).

          An interesting possible distinction in the case write up comes from contemplating what earns copyright in the first instance: an expression captured in a fixed media.

          Expressions NOT in fixed media have no copyright protection, right?

          So when you buy a digital item, and that item is transferred to your local device, copyright in essence only exists on that item (that you bought) for the first time on your device (the court here attempts to distinguish copy from device to device being separate fixed media.

          This of course leads to the fact that by transferring something digitally (the “digital” NOT being fixed in and of itself), what is actually being transferred has no copyright at all. The digits are not only abstractions, not only intangible, but certainly are not fixed. It is the essence of the digits NOT being fixed that allow them to transfer.

          Further still, since the local person is the person taking the non-copyright “digits” and is the person fixing those digits in a fixed media of his local device, does that person become the copyright holder?

          This whole digital playground runs havoc over the traditional drivers of copyright protection.

      2. 1.2.2

        As explained in the court’s decision, a disk or other tangible medium containing a music file is a “phonorecord” as defined in the Copyright Act. But it is strange that the court starts with the premise that one purchases a digital file — i.e., a “copy” of a song — from iTunes. What we’re buying is a license to listen to the song on a limited number of Apple devices.

        1. 1.2.2.1

          What you buy….

          One does not buy a license.

          One may license an item.
          One may buy an item.

          Be that as it may, a quick view on the iTunes agreement starts out with:

          SERVICES

          This Agreement governs your use of Apple’s services (“Services”), through which you can buy, get, license, rent or subscribe to media, apps (“Apps”), and other in-app services (“Content”).

          So it appears that buying is contemplated. As is licensing.

          1. 1.2.2.1.1

            BUY: transitive verb

            1 : to acquire possession, ownership, __! or rights to the use or services of ! __ by payment especially of money : PURCHASE.

            The rule of law is NOT a “singular issue” rule. Stating it so is misstating the crux of the matter (when one has more than a singular issue).

            If one only ventures so far as “singular issue,” one misses out on understanding the more interesting aspects of the rule of law.

            1. 1.2.2.1.1.1

              Is there a reason you want to requote an unrelated item?

              Did you also miss the body of my post, wherein “buy” is distinguished from “license?”

              Or do you not care about these things?

              1. 1.2.2.1.1.1.1

                Did my comment sound like abject nonsense? What you must understand is that it is YOUR opinion that the facts that I present may mean something else. The facts that I have presented mean what they mean…… You do have some facts buried in there, but I have addressed those facts with my presentation of facts: to wit: “ and even whether tied to a direct political move or not” – this distinguishes opinions (how one may feel – in either direction) from the facts involved.

                1. Your comment (obviously lifted from a different conversation) is both out of context of that conversation and does not fit into this conversation.

                  Sort of reminds me of a Tr011 I once had try to attach to me thet would banter mindlessly about quality postings.

                  So let me repeat my recent point: your snipings do not add anything. Instead, if you disagree with a point I present, state your disagreement and reasoning. If you simply do not like what I post, but cannot add to the conversation, buy yourself a blanket and go sit in a corner somewhere clutching your blanket.

                2. You: “he does not say that he BOUGHT a license. He says that he pays for a license.”

                  So he pays for, but does not buy? Whaaaaa??????

                  You: “In other words, he licenses an item and does not BUY anything.”

                  You are confusing licensor (the party granting the licence) and licensee.

                  Per Black’s Law Dictionary: “LICENSE a right granted which gives one permission to do something . . . .”

                  What right is licensee Mr. Handel (the buyer) granting?

                  Be specific.

                  You: “One does not buy a license.”

                  Anything else?

              2. 1.2.2.1.1.1.2

                You: “One does not buy a license.”

                I responded with Webster’s first definition of the transitive verb “buy,” with emphasis on acquiring rights “to the use or services of.” In what universe do you think that is not expressing “disagreement” with your statement?

                Do you work in a field related to IP? Are you aware that patent licenses are rarely free to the licensee?

                I see zero substantive response from you in support of your bold new postulate that “One does not buy a license.”

                And I never will. Just more snark.

                1. You paid no attention to the rest of my post in which the differences of “buy” and “license”
                  was juxtaposed by each being in the iTunes agreement.

                  Your supplying of a rather bland dictionary passage – as if that provided any impetus to your point (it did not) was what, exactly?

                  The use of buy — in context — is one of ownership versus licensing (or other forms). You say “I see zero substantive response” while keeping your eyes clenched tight. That “not seeing” is a YOU problem.

                  As is typical.

                  Which is a very good possible reason why “snark” is something that you may experience a lot.

                2. I paid very much “attention” to the “rest” of your post. That is how I concluded you were making general statements about “buy” and “license.” Those statements were prior to the “Be that as it may” signal that you were turning to the specifics of the iTunes agreement. Which, not surprisingly, you never got to.

                  You: “What you buy….

                  One does not buy a license.

                  One may license an item.
                  One may buy an item.”

                  You: “One does not buy a license.”

                3. “Never got to…?”

                  I would say nice deflection, but it’s not.

                  Per the Terms and Conditions for All Apple Media Services:

                  “Apple’s delivery of Content does not transfer any promotional use rights to you, and does not constitute a grant or waiver of any rights of the copyright owners.”

                  I can see how that can be confusing to you, as it requires interpretation by an IP lawyer. Jonathan Handel, a Los Angeles-based entertainment attorney who specializes in digital media, technology and intellectual property, describes the transaction this way:

                  “When we buy something from iTunes, we are paying for the license to listen to music or watch a movie on our iPhone or other Apple device. But we are not buying the product itself and so we can’t actually own it.”

                  You: “One does not buy a license.”

                4. You project confusion.

                  You do so in error.

                  I get that you want to use the lingo loosely – and that others use the lingo loosely. But even here with the addition of the Handel quote, you actually reach more to what I posted, differentiating “buy” in the ownership context. (“But we are not buying the product itself“) – I “get” that you are upset about what you perceive as my throwing “snark” at you, but my post was – and is – still correct.

                  If you read Handels words carefully, he does not say that he BOUGHT a license. He says that he pays for a license. In other words, he licenses an item and does not BUY anything.

                5. You: “he does not say that he BOUGHT a license. He says that he pays for a license.”

                  So he pays for, but does not buy? Whaaaaa??????

                  You: “In other words, he licenses an item and does not BUY anything.”

                  You are confusing licensor (the party granting the licence) and licensee.

                  Per Black’s Law Dictionary: “LICENSE a right granted which gives one permission to do something . . . .”

                  What right is licensee Mr. Handel (the buyer) granting?

                  Be specific.

                  You: “One does not buy a license.”

                  Anything else?

                6. You continue to try to parse out the ownership aspect of “buy” and want to equate it solely to “pay for.”

                  That’s “Whaaaaa??????”

                  (and I am not the one confusing things here – yet again, you are projecting)

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