Want to Sell Your Mp3s? Tell It to the Judge

Interview

Friday, April 05, 2013

This week, two different federal courts delivered important and seemingly contradictory decisions about the way we consume digital entertainment.

One case involves ReDigi, a platform that lets you resell digital songs you bought from iTunes but decide you don’t want on your computer any more — like taking your CDs to the secondhand store. Record companies argued that because the technology requires that a copy be made, ReDigi’s service infringes on their copyrights; Judge Richard Sullivan of the US District Court, Southern District of New York, agreed.

The other case involves a new digital streaming service called Aereo that captures broadcast TV signals and routes them over the internet to users who pay a fee. Network broadcasters took Aereo to court, but in this week’s ruling by the Second Circuit Court of Appeals, Judges Christopher Droney and John Gleeson denied an injunction against Aereo. (The third judge on the panel, Denny Chin, dissented, calling Aereo “a sham,” “a Rube Goldberg-like contrivance, over-engineered ... to take advantage of a perceived loophole in the law.” Chin’s occasional hobby, crafting theater based on historic trials, was profiled by Studio 360 in 2009.)

TV viewers 1, iTunes users 0. Both cases “turn on the idea of what’s unique and what’s one-at-a-time,” according to Adam Liptak, who covers law and the Supreme Court for the New York Times. Although ReDigi’s model promises to move our unwanted mp3s to a secure digital locker where they become inaccessible to the seller, the service is “too clever by half,” Liptak tells Kurt Andersen. “There are problems every step of the way as a matter of law and as a matter of technology.” The 1976 Copyright Act “treats these [audio files] as reproductions, as copies, not as a single unitary material object” — like those old CDs — “that you’re moving from place to place.”

In the case of Aereo, earlier decisions that allow us to use DVRs and VCRs set a key precedent. Aereo uses “antenna farms” of thousands of antennas, each assigned to an individual subscriber. “Here the court was persuaded that the individual antenna makes it enough of a one-at-a-time thing,” says Liptak.

The fact that these cases are decided on a law that predates the digital era by decades makes a lot of work for lawyers and judges; it would be up to Congress do the real heavy lifting. “The Copyright Act needs to take account of where we are now and not in 1976,” says Liptak, but he is not optimistic that will come to pass. “The correct answer is that it should be Congress, and the likely real-world answer is it’ll be the courts” that continue ruling on digital rights.

→ Should people be able to resell their used mp3s? Should it be legal to stream live broadcast TV over the internet without the networks getting a dime? Tell us in a comment below.

Comments [5]

David

As usual when it comes to either protecting the public interest or protecting big business interest guess who's interest Congress has in mind?

Apr. 07 2013 07:48 PM
Marie

I think the music industry is once again being short-sighted by fighting with the consumer: we used to have a product with a value that could appreciate over time - think of all the amazing vinyl libraries that people would build and trade and love. The industry is taking a huge part of the emotional investment and value out of the music buying experience.

Apr. 07 2013 11:30 AM
Ben from Brooklyn

There is nothing confusing about the issue for me. And the entertainment companies should have the ability to say they are selling me a license to play a piece of music, or software, not selling me the disc or download itself. And if they are selling me the rights to play it, then they can certainly restrict my resale rights. But then those entertainment companies cannot themselves foster any confusion to try and "double dip."

Once they have sold my son a license to play "Thrift Shop" on his iPhone, they can't legally sell him a ringtone of the same song -- since he has the full right to play any part of it on his phone. And if they sold me the rights to play five different Allman Brothers Band records, then how can they try and resell those rights again to me with each new format?
And if Nintendo chooses to copy protect the Wii discs that my kids use, that's okay. But if those discs get scratched, they can't tell me to go buy another one -- they sold me the license to "play" that software and it is their problem how to move the software onto my machine once I've paid for that right.

This is where the confusion comes in.

Apr. 07 2013 01:13 AM
ML from MD

I had to comment about the court rulings about reselling MP3s vs. reselling broadcast TV programming: broadcast TV makes its money via advertising, not selling the TV show itself to viewers, so re-broadcasting it doesn't hurt the people who made the product. In fact, the more people who see the shows that are being resold, the more the creators can charge for ads. Digitally recorded music is different because the creators make their money selling copies of the music itself. Selling digital copies of music is like buying a book, xeroxing it and selling the copies for a profit. So the court rulings are not confusing at all -- they are completely different issues.

Apr. 06 2013 02:20 PM
D'Adre Cunningham from Seattle, WA

Did ant ever give back their mix tapes, or take the MP3 copies off their hat drive prior to resale of the LP or CD?

What does retention of copies really have to do with prior real practices of consumers?

Apr. 05 2013 10:17 AM

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