Flog secondhand MP3s at your peril - law guru Redigi, an American startup company, has found itself in trouble for selling legally downloaded digital music tracks secondhand. Last week it was on the receiving end of a copyright infringement suit in the US. The arguments that will run in the US court are similar to those that would be used here in the UK, and it is clear …
if the file is on a cloud somewhere when initially bought, then when the mp3 file is sold, provided it is still on that cloud, it is still on "original media" and hence not needing to be copied again (apart for the purchaser's personal use, which is legal and not under discussion...)
Just my IANAL £0.02
The Copyright Act and various court interpretations and amendments since then have stated that, for the purposes of getting the music from one device YOU OWN to another device YOU OWN and getting it to work there, copying is OK in such a case because the work in question never officially changes hands. It's why it used to be legal to keep backups of software when they came of floppy disks, in case the original disks failed.
If you look at the strict letter of the law in the UK, there is no provision for backups or changing of media type, hence recent proposals for law change. Indeed, for many years it was technically illegal to install software as that involved making a copy and the way round that was changes to company EULA to give you an automatic copyright permission to do it.
However, recently many judges and the like have realised this is stupid and basically put a common sense interpretation on the law. If someone was take to court for ripping CDs onto his MP3, most (and I do say only most) would simply laugh it out of court. However, what's interesting is that they are under some circumstances assuming a person is guilty. For instance, it someone wants to sell their MP3s, they are assuming foul play and strictly adhering to the law. Why? In a digital economy, it makes no sense to treat a digital version any different to a physical version of the same product.
It is also not right that judges choose to ignore explicit wording within law even for some events when it's a sensible decision (as most people would see it) and yet choose not to apply the same principal for other events, whether it could be an illegal act or not. Interpreting the law differently for same basic principal (just different) media etc. is not logical.
From my reading of things in the UK, you are sort of correct.
IANAL but ISTR that copyright law allows for copies that are intrinsically made to use a copyrighted thing (e.g. the projection of book print onto your retina, or sound waves from the vibration of a needle on a record).
However the lawyers have convinced people that when a "1" or "0" stored on digital media is represented by a voltage in a circuit, that a copy has been made. They claim that this means the person making this copy needs a license to copy the item, and hence they "allow" you to make copies under certain conditions. Without this license to make copies you would effectively be in breach of copyright law even just listening to the MP on your PC.
I had hoped that the Hargreaves review would've sorted all that out, but it seems not.
"However the lawyers have convinced people that when a "1" or "0" stored on digital media is represented by a voltage in a circuit, that a copy has been made."
This was a wholly novel idea that was first introduced in the US case of MAI Systems v. Peak Computers, 9th circuit 1993. MAI Systems maliciously sued one of their former service engineers for leaving to work for a competitor, and convinced the court that in order to fire up a computer to run diagnostics it had to load the operating system, and when a competitor did so it was making an unauthorized copy. This was picked up by a US government working group on intellectual property headed by Bruce Lehman, the Patent Commissioner and former copyright lobbyist, and staffed by numerous other former copyright lobbyists, who thought the Mai decision was an excellent idea that should have wider application. The Lehman group's report was issued in 1994; the rest is history.
"First of all, copyright law mostly does not allow the reproduction of a digital file on someone else's computer, even if the original copy was lawfully downloaded and is subsequently deleted."
How about if I had rented space on someone else's computer? For example as a cloud backup space?
How about if the Ts&Cs of that storage solution allowed them to look at my data.
How about if I rented some space on my computer to other people under the same terms. How about if I offered a loss leading incentive (say about the cost of a song for about the space of a song)?
Probably not, if you can argue that your mp3 is a "computer program".
"50ABack up copies.
"(1)It is not an infringement of copyright for a lawful user of a copy of a computer program to make any back up copy of it which it is necessary for him to have for the purposes of his lawful use.
"(2)For the purposes of this section and sections 50B [F3, 50BA] and 50C a person is a lawful user of a computer program if (whether under a licence to do any acts restricted by the copyright in the program or otherwise), he has a right to use the program.
"(3)Where an act is permitted under this section, it is irrelevant whether or not there exists any term or condition in an agreement which purports to prohibit or restrict the act (such terms being, by virtue of section 296A, void)."
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(and yes, this is massively overkill) designing a USB stick to hold 1 MP3 (or maybe one album), and then using a ZFS like filesystem to present as one filesystem (would need adjusting so the files were a) not spread over multiple volumes and b) accessible without needing the rest of the pool).
Then you could download to /home/$USER/mymusic which would appear to the user as one folder full of music (with subfolders if necessary). But if you plugged one of the sticks into another PC (or sold it on) it would appear as a drive with one file/album.
A few minor design issues obviously;
- USB bandwidth would be somewhat lacking
- You'd need a _lot_ of USB ports and sticks for a sizeable collection
Does an electonic transfer of money constitue forgary? After all no physical money changed hands, the banks just make an electonic copy of the money. The banks may say that the electonic original was destroyed after the transfer and I presume that is what Redigi are doing as well.
Also second hand CD sales are the bain of the copyright mafia, remember in 1993 when that twat garth brooks withheld his albums from stores that sell used CDs, calling the practice "evil".
This judgement is exactly what the copyright maffia want, it makes it clear that you have to buy a new copy of a song each time you change a disk, format, player etc. Why is it that the copyright mafiaa expect payment in perpetuity for a once off piece of work, it's a bit like the teachers who taught me expecting a share of my salary for ever.
I've bought the CD and the copyright mafiaa made money from me when I did that, they aren’t getting any more.
The bank does not send a copy of your money. It takes your money and signals the other end that they have yours so can give some of their money to your target.
Your view looks similar to when you bought a film on Betamax, then VHS, then Videodisk, then DVD and now BluRay
A teacher may well be hacked off if they wrote a song for you at school that you then sang and it sold well, earning you royalties, and the teacher didn't earn a share for his creation.
>>"Does an electonic transfer of money constitue forgary? After all no physical money changed hands, the banks just make an electonic copy of the money."
Not really - the balance in an account is really just a number, or a bookkeeping fiction if you like, it's not real money, and never was.
Even if a bank 'forged' an increase in an account held with them without a matching decrease elsewhere, it'd hardly be 'forgery' since it would only be themselves that they were screwing - if the customer withdrew the 'extra' money, it would be the bank that paid out, not a national treasury.
>>"Also second hand CD sales are the bain of the copyright mafia, remember in 1993 when that twat garth brooks withheld his albums from stores that sell used CDs, calling the practice "evil"."
No, I don't.
How did that work out for him?
Did many *other* evil musicians join in to make it a great mafia campaign?
>>"This judgement is exactly what the copyright maffia want, it makes it clear that you have to buy a new copy of a song each time you change a disk, format, player etc."
No it doesn't.
When did 'they' last even try to sue someone for ripping a CD to play on their own MP3 player (or sue someone for copying a CD onto a cassette for their own use)?
Or even for giving a mate a set of DVDs with MP3s of a complete CD collection?
Seems 'they' only *really* get touchy about stuff either being *sold*, or given away potentially to any number of strangers on the internet.
This judgement is about selling stuff to other people in a situation where the 'original' can't reliably be shown to have been properly deleted.
I think you miss my point entirely, what is a digital file, it’s a collection of 1’s and 0’s that are copied, it’s only how those 1’s and 0’s are interpreted at the end of the transfer process that ascribes any value to them. The money in my bank account may not have been the best example, and it was a bit disparaging, but there are also a lot of securities that are routinely traded that don’t physically exist either.
“copyright law mostly does not allow the reproduction of a digital file on someone else's computer, even if the original copy was lawfully downloaded and is subsequently deleted”
What Redigi have tried to do is create/access a new market, if Redigi have 1 copy of a song they say they will only sell 1 copy and if some smart ass tries to sell the same track again Redigi will reject it.
Redigi also said that it would give a portion of each sale to the artists and record labels, something that secondhand sales don’t usually, sadly that is not enough to satisfy the greed of the copyright mafiaa.
Unfortunately for the copyright mafiaa, the stable door is open, the horse has bolted, bred in the wild, multiplied, and mutated, formed herds and created its own state of existence. Meanwhile, the copyright mafiaa are still trying to close the stable door.
@ david wilson;
No it didn’t work out too well for Brooks, sales of the next record slumped miserably and he had to relent and allow the records stores that engaged in the “evil” practice of selling secondhand CDs to sell his new CD, I believe he now only distributes his CDs through wal-mart.
“This judgement is about selling stuff to other people in a situation where the 'original' can't reliably be shown to have been properly deleted.”
I don’t agree with that, this is exactly the same method politicians use to lie, hide the lie by wrapping it in a bit of the truth; you can never be sure that the original has been deleted, the only way around that is to never let a legitimately downloaded piece of music be resold, It’s a bit like presidential candidate Rick Santorum when he says he has nothing against gay people, as long as they don’t do anything gay, I guess the copyright mafiaa are the same, they’ve nothing against secondhand music sales, as long as nobody sells anything secondhand.
>>"I don’t agree with that, this is exactly the same method politicians use to lie, hide the lie by wrapping it in a bit of the truth; you can never be sure that the original has been deleted, the only way around that is to never let a legitimately downloaded piece of music be resold,..."
I guess I phrased things badly.
It's the inability to delete the important part of the 'originality' of a track - the right/ability to resell it again - which is the main issue.
If the 'orginality' of any retained copies, wherever they may be, is not in some way deleteable by the resale, then it would be understandable why resale might be an issue for a rights holder.
From what I can see, ReDigi establish 'legitimacy for sale' by
a) looking at the individual MP3 file
b) recording the fact that I have sold a file via them
c) deleting any copies I have which their software can detect
but that does seem to be lacking, given they have no means to tell how many copies of the same file I may have already made and distributed.
>>"What Redigi have tried to do is create/access a new market, if Redigi have 1 copy of a song they say they will only sell 1 copy and if some smart ass tries to sell the same track again Redigi will reject it."
If a typical Amazon MP3 I bought was copied to another person's machine, how could it be identified as being the 'same' as my copy if the file contents are actually the same for all copies of that file that Amazon sell, which is, apparently, the case for most MP3s they actually sell?
*I* can only sell a given track once, but would that stop me giving copies to a dozen mates before selling mine, and have them all able to sell the track as well?
Or in the case of Amazon MP3s, does it mean that once one Amazon MP3 of a given track has been sold, no-one else can sell an Amazon MP3 of that track?
Or do ReDigi simply not deal in non-uniquely-fingerprinted MP3 files, meaning they're no use to someone who buys 'clean' MP3s?
None of those situations seem exactly perfect - one makes a mockery of the whole patented 'verification' idea in the first place, and the others would make the site rapidly worthless for many or most users.
Now, if they have found a way to trace the provenance of a specific copy of a 'clean MP3', which has been legitimately bought and downloaded by multiple people without any distinguishing information in the various downloaded copies, that *would* be interesting.
If somewhat unlikely.
So you can't re-sell Steam games, downloaded MP3s or eBooks. If you want to do that kind of thing, buy a physical version.
I know it's an old argument, but as the digital versions are more restrictive in their licence, why aren't they much cheaper? (Actually Steam games often are, but eBooks often aren't)
I guess when digitally distributed video, books and music were new and shiny early adopters were happy to pay similar prices to the physical versions and now they're old hat, the distributors don't want to give up on that income.
"So you can't re-sell Steam games, downloaded MP3s or eBooks. If you want to do that kind of thing, buy a physical version."
I have numerous Steam games. And these numerous Steam games are each on its own Steam account. And when I want to sell a Steam game, I simply sell the Steam account on eBay; I have bought and sold Steam accounts on eBay many, many times.
I'm sure you CAN do it, but that doesn't make it legal.
When you got a Steam account you agreed to their terms and conditions which don't allow you to sell the account (or the subscriptions as they call the games).
See the Steam Terms and conditions section E
http://store.steampowered.com/subscriber_agreement/
I could re-sell my MP3 and eBooks, that's not the point, it's the fact that the licence I have bought restricts selling but doesn't reduce the price to reflect that restriction.
And the entertainment industry wonder why copying and copyright abuse is so large!!
The whole concept of copyright is made unenforcement in any sensible way by modern technology. You could go to a personal license. You have purchased it, therefore you can listen to it. But then, you couldn't play it on a hifi to your girlfriend. Not allowing copying effectively makes huge entertainment companies in breach of the law. MP3 players etc.etc. aren't legal as they make a copy.
You can sell a CD, but you can't sell a download!! WTF. They're effectively the same thing. Either way, they're simply a music (or whatever) file and if you can sell one, you should be able to sell the other. Anything else just doesn't make sense.
It's all a nonsense and the more they keep coming up with these stupid cases and media profile, the more copyright violations will occur and increase. People are fed up, the risks are low and their customers are now revolting.
I suppose I should be looking over my shoulder as well. A couple of weeks ago, I helped someone move all their files from their old computer (disposed of properly) and onto a new computer. As part of this involved copying his ITunes files, presumably I'm guilty and so is he? After all, we copied digital music files. We deleted the original (before disposal of the machine), but that's simply what this company did!! Has he made something out of it? No. Have any of the media companies lost anything? No. So, how in gods name is it an offence?
I disagree. You see, a CD it is a physical item. An original item. Not a RIPPED CD mind you. A download can obviously be copied...even ripped to a cd. A copy none the less.
Everyone understands the difference. Why fake it? Why act like selling a download is the same as selling a physical CD? It's not! You don't like it? Buy the CD! You can sell it and keep your RIPPED copy too...just don't let anyone know you have a ripped copy!
Your argument is spurious and silly. Yes, a CD is a physical item, but so is a digital file!! It's a physical item (i.e. 1s and 0s on a hard drive rather than 1s and 0s on a CD), the difference being the physical item is not seperate from everything else and individually saleable. A CD can be sold and only the tracks on the CD will be sold. However, if you sell the hard drive, you have to sell not just the hard drive, but everything else as well. The actual trade is effectively identical though. You're selling one set of files on CD or a set of files on hard drive. You're simply asking the recipient to supply their own storage medium. In all intellectual senses, the tracks in MP3s are identical to tracks on CDs.
If you can see the tracks on a CD and be prosecuted for making a CD copy and sell it, why can't you sell your MPs and be prosecuted for copying them and selling the copy? Same thing. The difference is that one is easier than the other. However, the law doesn't and shouldn't differentiate on whether something is easy or not, just on whether it is right. So, removing your right to copy because it makes it easy to break copyright simply states they believe everyone is inherently a criminal and therefore should be prevented from doing it to stop the crime which they would undoubtedly commit. It's effectively Minority Report territory.
They are finding people guilty of the crime BEFORE the event and crime ever happens.
>>"In all intellectual senses, the tracks in MP3s are identical to tracks on CDs."
In terms of the usefulness of the data, maybe, but the thing with the CD is that, (ignoring possible counterfeiting), it is an automatic physical proof of ownership, so a buyer knows they're buying an 'original', a marketplace knows it's dealing only in 'originals', a person can only sell one 'original', and a rights-holder can see that the number of saleable 'orignals' isn't increasing beyond what they were paid for.
Whether someone might keep a copy or not for their own use after selling a CD or digital file is a separate issue to what mechanisms might prevent the 'same' digital file being duplicated into numerous *saleable* copies.
Are there any reliable mechanisms which everyone would be likely to be happy with?
btw- you did not have to copy the iTunes files. You just had to login to iTunes on the new computer and request that iTune download all purchased files to the new PC. Of course, you would have had to RIP the CD's for non-iTunes content. Potentially, what you did would allow illegal content. Care to give your name, address and phone so the appropriate authorities can hit you?
Whilst I appreciate I could have redownloaded all the music, my friend happens to be a very prolific customer of ITunes. Therefore, he has many GBs of files. Now, would a sensible person simply download it all again, annoying their ISP and hogging their internet connection for many hours, or would they simply copy it computer to computer? Takes minutes rather than hours and everyones a winner? My friend happy, ISP happy etc.etc. According to this posting, only one group unhappy..........the copyright holders. They would rather you buy it all again, or annoy everyone by downloading GBs again.
Yes, what I did might allow illegal content, but then letting you out of your house might allow y9ou to murder someone, but it doesn't mean I can't. If banning everything that might allow an illegal act was the way to go, nobody could do anything. Stupid argument.
Proof yet again that the physical property analogy for "intellectual property" only holds when it suits the content industries. Rhetoric treating copyright violation as theft, one illegal download equals one lost sale, etc., but no re-selling something that you legitimately bought? Stop trying to have it both ways.
OK...so you mean you bought a 3$ US USB 512MB drive, downloaded a 8$ US iTunes album, listened to it for 6+ months and then sold it for what 4$ US + shipping (on e-Bay no doubt so with seller costs brings it to the original cost)? So you got to listen to that music at 75% original cost in the end. Add the cost of the time to do the sale you made nothing. Go For It! I prefer to just keep it. And consumers would prefer to buy it rather than save 50% IF THEIR BID WINS!
This is a silly discussion. Fact is, if you resell it's illegal unless you buy the CD and resell that. Get over the download stuff! By the time you have worked around the law you are losing money, time or both!
I don't disagree at all with the idea not being practical, but banning the selling of MP3s because some might copy them and then sell the copy is finding everyone guilty before the fact. Anyway, exactly the same can be done with CDs and you can still sell them. This has nothing to do with sense or moral right and wrong. It has everything to do with protectionism and profiteering. Just the thing that made it happen in the first place.
The industry have profiteered and taken with p**s out of their customers for years. CDs costed more than tapes. Why? They're cheaper to produce. DVDs cost more than VHS. Why? Same is true. etc.etc. With many other crimes, the activities and provocations of the industry would be seen as mitigating factors.
>>"I don't disagree at all with the idea not being practical, but banning the selling of MP3s because some might copy them and then sell the copy is finding everyone guilty before the fact. Anyway, exactly the same can be done with CDs and you can still sell them. "
To be fair, the worst-case scenario is that some individual (or some group of people) sell the exact same track any number of times.
That can't be done with CDs in any practical sense by an average person.
>>"CDs costed more than tapes. Why? They're cheaper to produce."
Pricing things really is down to what someone thinks people are prepared to pay, not some kind of idea of 'fairness'.
For the buyer, CDs were better than tapes in most respects (quality, convenience, durability), so they were generally prepared to pay more for them.
If a company started making items from plastic rather than wood, and for the given use, plastic gave a 'better' product, they might well charge more even if the items cost less to make.
Now, of course, in general industry (excluding patented processes) someone 'charging what the market will bear' has to keep an eye open for people undercutting them, which isn't a worry for someone publishing copyright material - the only legitimate 'competitor' for new CD sales is sales in other digital formats, or secondhand CDs.
But then it's not necessarily easy to enforce 'fairness' in some patent/copyright/monopoly situation, or even to know what fairness really is.
Even if discs were cheaper than the equivalent tapes to make, if tapes had a more limited lifespan, were harder to copy, less likely to be re-sold, maybe less likely to be lent, etc, then it might be more 'profitable' overall for a manufacturer to sell tapes cheape rthan discs even if the profit-per-item was lower.
Sure, you could argue with some justification that once you've paid for the intellectual property, it's a rip-off to have to buy it again if a tape wears out, though the question then would seem to be how to fix that, and at whose expense, and would you expect a publisher to replace worn-out books.
So do you sell your track to these guys, and then have to delete it from your hard drive (maybe their software does it for you)? I've never used iTunes, but I believe that if you experience a hard drive failure for example, you can download all of your songs again from iTunes onto another device. What would stop you doing this after you sold all your tracks?
Or do you simply prove (somehow) that you've bought the track, and then sell a copy of it to the company, keeping the 'original'? In this case, you could do it over and over again.
Either way, it all sounds dodgy. How did they expect to get away with it?
I do see your point, but what is to stop a person buying a CD, ripping it to another CD and making high-quality replicas of the covers, whilst keeping the files on a computer for use on MP3 player/phone/home media server, and then selling on the CD? Where is the difference? The person still has all the relevant media, and has made some money back from legally selling the original.
It seems to me that if you have paid substantially the same amount for an electronic copy of anything from an outlet that the publisher approves of, as you would have done for a physical copy (book, CD, DVD, whatever), then you should be deemed to have exactly the same rights of ownership over the electronic copy as the physical one. If the publishers want to reduce rights of ownership, then they should pay for the privilege by reducing the price significantly (at least 50%)
Yes, the law is to stop them. I don't think anyone would have a problem with someone being prosecuted for copying their MP3s and selling them. That's the same as copying the CD and selling it. If copyright holders can provide someone has sold copies without deleting the original, then prosecute away. No problem there. However, what they're doing with this judgement is stopping people selling something they own on the ASSUMPTION they will do this.
That's called being assumed guilty until proven innocent. A dangerous road to travel.
At least you can sell them.
Like the rather disgusting Westlife CD my daughter bought because it was cheap and she had a new CD player.
Format shifting is a bit of a pain and to be honest I would rather start with a CD.
Not all of us have jumped down the mp3 route, I still use MD and CD changer in the car, because it works. Still use a DVD player in the house as it is fantastic with audio (won awards and used as a transport by audiophiles - I like its SACD DVD-A support)
At least I can buy a CD ect and if I don't like it or get fed up with it sell it at a car boot/Ebay/record shop.
Downloading music is now leading to a whole world of hurt for consumers UNLESS you "Obtain" instead.
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