The Used CD Store Goes Online


Cross-posted from PrawfsBlawg

On Monday, Judge Sullivan of the Southern District of New York will hear argument on a preliminary injunction motion in Capitol Records v. ReDigi, a copyright case that could be one of the sleeper hits of the season. ReDigi is engaged in the seemingly oxymoronic business of “pre-owned digital music” sales: it lets its customers sell their music files to each other. Capitol Records, unamused, thinks the whole thing is blatantly infringing and wants it shut down, NOW.

There are oodles of meaty copyright issues in the case — including many that one would not think would still be unresolved at this late date. ReDigi is arguing that what it’s doing is protected by first sale: just as with physical CDs, resale of legally purchased copies is legal. Capitol’s counter is that no physical “copy” changes hands when a ReDigi user uploads a file and another user downloads it. This disagreement cuts to the heart of what first sale means and is for in this digital age. ReDigi is also making a quiver’s worth of arguments about fair use (when users upload files that they then stream back to themselves), public performance (too painfuly technical to get into on a general-interest blog), and the responsibility of intermediaries for infringements initiated by users.

I’d like to dwell briefly on one particular argument that ReDigi is making: that what it is doing is fully protected under section 117 of the Copyright Act. That rarely-used section says it’s not an infringement to make a copy of a “computer program” as “an essential step in the utilization of the computer program.” In ReDigi’s view, the “mp3” files that its users download from iTunes and then sell through ReDigi are “computer programs” that qualify for this defense. Capitol responds that in the ontology of the Copyright Act, MP3s are data (“sound recordings,” to be precise), not programs.

I winced when I read these portions of the briefs. In the first place, none of the files being transferred through ReDigi are MP3s. ReDigi only works with files downloaded from the iTunes Store, and the only format that iTunes sells in is AAC (Advanced Audio Coding), not MP3. It’s a small detail, but the parties’ agreement to a false “fact” virtually guarantees that their error will be enshrined in a judicial opinion, leading future lawyers and courts to think that any digital music file is an “MP3.”

Worse still, the distinction that divides ReDigi and Capitol — between programs and data — is untenable. Even before there were actual computers, Alan Turing proved that there is no difference between program and data. In a brilliant 1936 paper, he showed that any computer program can be treated as the data input to another program. We could think of an MP3 as a bunch of “data” that is used as an input to a music player. Or we could think of the MP3 as a “program” that, when run correctly, produces sound as an output. Both views are correct — which is to say, that to the extent that the Copyright Act distinguishes a “program” from any other information stored in a computer, it rests on a distinction that collapses if you push too hard on it. Whether ReDigi should be able to use this “essential step” defense, therefore, has to rest on a policy judgment that cannot be derived solely from the technical facts of what AAC files are and how they work. But again, since the parties agree that there is a technical distinction and that it matters, we can only hope that the court realizes they’re both blowing smoke.


Disclaimer - I’m not a lawyer. But I do remember arguments over this program/data issues over the years.

I would say, even though I’m sympathetic to ReDigi, the argument fails on the use of section 117 in context, NOT program vs. data. That is, even if it was “it’s not an infringement to make a copy of a “computer program/data” as “an essential step in the utilization of the computer program/data”, it still wouldn’t work. That is, section 117 is about the USING of program/data in terms of performing its function - e.g. loading into memory. The program/data files sitting on servers aren’t being used for anything.

Note the full text is (emphasis added)

that such a new copy or adaptation is created as an essential step in the utilization of the computer program in conjunction with a machine and that it is used in no other manner

Moreover, section 117 specifically applies to “owner of a copy”, and there’s some decisions saying most software buyers are licensees, not owners, hence no section 117.

http://iplaw.hllaw.com/2010/09/articles/copyright/ninth-circuit-addresses-owner-vs-licensee-determination-in-applying-first-sale-doctrine/


Oh, certainly: the definition of “computer program” is far from the only issue in the case. Capitol raised the “essential” argument, as well. The licensing issue is perhaps more complicated here: ReDigi claims, at least, that iTunes tracks are “sold” not “licensed,” based on the language Apple uses in its iTunes terms.


We could think of an MP3 as a bunch of “data” that is used as an input to a music player. Or we could think of the MP3 as a “program” that, when run correctly, produces sound as an output. Both views are correct — which is to say, that to the extent that the Copyright Act distinguishes a “program” from any other information stored in a computer, it rests on a distinction that collapses if you push too hard on it.

Nicely put.
Thou rather than blowing ‘smoke’ , might they be said to be blowing quantum cats?


Both views are correct — which is to say, that to the extent that the Copyright Act distinguishes a “program” from any other information stored in a computer, it rests on a distinction that collapses if you push too hard on it.
Every computer program can also be viewed/rewritten as being a mathematical proof of some mathematical fact, meaning that, to the same extent, the Copyright Act rests on somehow being able to distinguish between those mathematical facts which are (codings of) creative content, and those which are not.


Its fun to isomorph.

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