An MP3 is just like a CD — until you try to sell it

Jesse Brown weighs in on a recent ruling on digital music and copyright law


Library of Congress

MP3s are no different than CDs: if you want one, you should buy it. That’s the argument music labels including Capitol have been making to music fans for the last 14 years. Of course, when you buy a CD, you have the right to sell it. Here, Capitol feels that MP3s are totally different.

Last year Capitol sued ReDigi, a start-up that lets you re-sell your legally purchased digital music. ReDigi performs technological somersaults to make MP3s behave like CDs. Its Marketplace app verifies that your MP3 was legally purchased, then allows you to sell it to someone else at a discounted rate. Once you make the sale, ReDigi deletes the MP3 from your hard drive.

A U.S. District Court in New York has just ruled in favour of Capitol. Judge Richard J. Sullivan found ReDigi to be in violation of copyright law, on the basis of some pretty flimsy details:

“…the fact that a file has moved from one material object – the user’s computer – to another – the ReDigi server – means that a reproduction has occurred. Similarly, when a ReDigi user downloads a new purchase from the ReDigi website to her computer, yet another reproduction is created. It is beside the point that the original phonorecord no longer exists. It matters only that a new phonorecord has been created.”

I’ll resist the urge to mock Judge Sullivan for calling an MP3 a “phonorecord” (or at least, I’ll save that for Twitter). That grandpa term isn’t his, it comes from the copyright laws he’s interpreting. It should provide some insight into just how desperately in need of modernization this legislation is. Even without such amendments, Sullivan has leeway to read and apply the law flexibly, but he’s chosen to forgo that discretion. So while he might be adhering peevishly to the letter of copyright law, he does so in complete disregard for its spirit.

What’s actually beside the point here is how many copies ReDigi incidentally creates in the process of brokering a legitimate sale. Seriously, why would a copyright holder care, so long as there’s just one copy, which was legitimately paid for, trading hands?

Beyond the court’s small-minded interpretation of the law, this case provides real-world examples of a couple of persistent truths:

  • The music industry has no consistent ideology or principles about digital music beyond the short-term preservation of their perceived interests. An MP3 is just like a CD, until that means that they might get cut out of a sale, in which case it isn’t like a CD at all.
  • This belligerent attitude has long been described by technologists as an obstacle to innovation and invention. This case demonstrates just that. Capitol is seeking $150,000 from ReDigi. Per song.

Let that be a lesson to anyone else with a good idea for a music app.

Follow Jesse on Twitter @JesseBrown

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An MP3 is just like a CD — until you try to sell it

  1. The leeches that have been ripping off artists for years also want to rip off their customers.

    If the “phonorecord” merchants aren’t actually distributing the artist’s product in an efficient and affordable way that produces a net benefit to both the artist and the customer, they are a useless barrier that adds costs and disrupts the supply to the marketplace.

    The solution is to stop giving them money and spend it instead on live music events or buying directly from the artists.

  2. One time I agree with you about the music industry and file transfers, Jesse.

    If redigi has come up with a way to verify that the file is legit, and can guarantee its removal from your hard drive that should be enough to allow the transfer to go through. But what can you expect when the US Chamber of Commerce has been funding judgeships for the past couple decades.

  3. There were many more copies that just those made: a disk cache copy, a memory copy, a paging file copy, a few copies in the network buffers — all unpaid for. It’s an outrage, really.

  4. One more fine example of why trying to purchase digital music legally is a complete and utter joke. Don’t bother, just pirate it. The only way this farce will ever end is when the “recording industry” is dead and buried.

    This isn’t being done to protect copyright holders, or artists, it’s being done strictly to stick it to consumers. So don’t be a consumer, as they see it.

    And by this judge’s logic, any time a legitimate copy of a CD is made for personal backup purposes, it’s also creating a “copy” that will live in a computers memory for a few minutes. Any piece of software that is sold on the internet is “copied” multiple times along the network to the purchaser. Hell, buffering a Netflix could constitute creating a “copy” under this narrow definition!

    • For that matter, when your computer actually plays the CD, it’s still transferring the information off of the CD and into memory…

  5. Since the “word of the law” can be interpreted to support either side, the only thing that matters is the judges predetermined stance. The rest is for show.

  6. What a horrible, horrible blog post. And lazy, too.

    The court decision happened in the U.S. This is Canada. MacLeans is a Canadian publication.

    Would it be too much trouble for Jesse Brown (who is billed as “offering critical thoughts on technology and what it means”), to tell us what it means to CANADIANS?

    I can read American blogs and publications to get 10 times the analytical coverage that Mr. Brown offers here, on the U.S. impact. What we need is the Canadian implications, Mr. Brown. Stop the laziness and shallowness, and earn your bucks.

    • What happens in the US often has an impact in Canada. What part of “offering critical thoughts on technology and what it means” dictates that he can only comment on matters that happen in and directly affect Canadians?

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