On February 7, Amazon.com announced that it had patented a way to sell “used e-books, music, videos, and other digital objects”. I was puzzled by this. Digital files aren’t really “used” in the same sense as a physical book or a music cd. They don’t get dog eared. They never have disgusting stains or other unknown but probably unsanitary items stuck to the pages. They don’t get mildewed like Leslie’s boxes of old feminist tracts from the 70s still moldering in our basement. Hmmm. What’s going on with this?
My mind started to spin. I began thinking about the great philosophical systems. Plato. Buddha. Aristotle. Descartes. Immanuel Kant. The English empiricist Bishop Berkeley (pronounced “Barkley”) who famously said that if a tree falls in a forest and no one hears it, there was no sound. But there is the even more famous anecdote by Samuel Johnson who said to Boswell as he kicked a stone: “Thus do I disprove Bishop Berkeley.”
What is real? That is the first and fundamental question of all philosophy. And now, thanks to the endless ingenuity of Internet entrepreneurs in their ongoing efforts to exploit all potential digital markets, we now bring this question to the virtual world. Is a digital file a physical object or is it an idea in the mind of the creator (creator, that is, the creative artist, not the Lord our God).
Let’s backtrack. There is a legal concept ( section 109 of the Copyright Act) called “the first sale doctrine”. Under this provision, ownership of a physical copy of a copyright-protected work permits lending, reselling and disposing of an item but does not permit reproducing the material, because transfer of the physical copy does not include transfer of the copyright to the work.
Can one legally sell a used copy of a digital product or is it simply a reproduction and a violation of the Copyright Act? On March 30, Judge Richard Sullivan of the First District Court of New York issued a judgment in Capital Records v. ReDigi in which he categorically rejected the right to apply the “first sale doctrine” to the reselling of digital products. The issue before the court was music downloads, but the language in the judge’s decision would equally apply to e-books.
ReDigi dubs itself as “the world’s first pre-owned digital marketplace.” The model is simple. Users can upload their old iTunes to ReDigi servers, a process which at the same time removes the tracks from the user’s computer. The company then offers the music for sale at a “used” discount keeping a commission on the final sale price. ReDigi claims that it migrates a file from the user’s computer to its Cloud Locker, so that the same file is transferred and no copying occurs.
Judge Sullivan rejected this argument, calling ReDigi “a clearinghouse for copyright infringement”. He said that “when a file is moved from one material object to another, a reproduction has occurred….Similarly, when a ReDigi user downloads a new purchase…yet another reproduction is created.”
He made an interesting distinction by pointing out that digital files can still be sold if it resides on a hard disk, an iPod, or other device onto which the file was originally downloaded and which is being sold a the same time.
Who wins and who loses? It’s a big victory for authors, publishers, and copyright holders. A defeat for ReDigi and probably for pirates. And I guess you would have to say it is the triumph of Descartes over Plato.