18 April, 2013

The First Sale Doctrine takes a hit - you can't resell digital music

The anticipation of whether the Kirtsaeng v John Wiley and Sons would change the way in which we're allowed to resell our legally purchased goods (discussed on this very blog here) was huge, both in the legal world, and in the minds of consumers just aching to sell off that CD collection bought in Europe. Well, it looks like we've taken the first step towards the limitations of the First Sale doctrine.

A US Federal Court handed down its judgment in the case of Capitol Records v ReDigi Inc at the end of last month. The case concerned the resale of digital music bought on iTunes or other digital marketplaces through the service offered by ReDigi, where users could sell their legally acquired smash hits to others who are looking for said music - much like a digital flea market if you will. The company was then sued by Capitol Records for copyright infringement.

The case in itself presents and interesting view of whether the First Sale doctrine could be applied in a digital world. Kirtsaeng dealt with the resale of physical goods, i.e. books, whereas the resale of digital goods would require the transfer of a new copy from the original music file through ReDigi's service. This is the reason which felled ReDigi's argument in the eyes of the court. The US Copyright Act  mentions a 'specific' phonographic record (a fancy way of saying a music recording), and making a copy from the original would not be within the remit of the doctrine. In ReDigi's defense they did argue that "technological change has rendered its literal terms ambiguous...", which in this writer's mind would be a valid point. If the copy could be traced to a legitimate copy, that should surely allow for it to be sold regardless of it being in a physical medium or not. Alas ReDigi's argument was rejected, and from a lawyer's perspective that holds to be true. The Court further noted a provision in the Digital Millenium Act which effectively prevents the redistribution of digital works. The Judiciary is not in the place to change laws, but to merely interpret them, and the approach taken by the Federal Court seems to be right in this case.

Spending all that money on vinyl finally paid off!
Here the law perfectly illustrates its dated approach to copyright law, having been enacted well before a time where such transfers of music or any other digital medium were even possible. Discussion in most common law countries over needed changes to the law, as noted on this blog as well, has been very active in the last few years, and cases such as this do highlight this fact very well. Should we be able to sell the goods we legally buy regardless of their tangible or intangible nature? Of course, especially when more and more music is being sold digitally than ever before. As it has been said before the gauntlet has been thrown to the legislatures of most common law countries to modernize their approach to copyright in current times. Whether they will act on this call to action remains to be seen, but as more and more commercial interests shift to the digital arena, the pressure for them to act will grow and change should come.

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