By Caitlin Kenney, NPR
If you have a CD or book you don’t want anymore, you can sell it. The
law says that’s perfectly legal. But what about an MP3 or an e-book?
Can you legally resell your digital goods?
This was the question before a judge in the case of Capitol Records v. ReDigi Inc.
Launched in 2011,
is basically a digital version of a used-record store. You can sell the
company your old MP3s, and you can buy “used” MP3s that other people
ReDigi says its technology ensures that the person
selling a used MP3 can only sell it once and can’t keep listening it
after it’s been sold.
But, not surprisingly, record labels
don’t like the idea of people buying and selling used MP3s. A month
after ReDigi launched, it got a cease and desist letter from the
Recording Industry Association of America that said “there can be no
doubt that ReDigi’s conduct constitutes willful copyright infringement.”
Last year, Capitol Records sued ReDigi. Their complaint
that ReDigi “makes and assists its users in making systematic, repeated
and unauthorized reproductions and distributions of Plaintiffs
copyrighted sound recordings.”
The case revolved around a legal
concept known as the first sale doctrine, which basically says that
once you buy a copyrighted work like an album it’s yours to do with as
“You can sell it to someone else; you can give it away, lend it, use it as a doorstop, use it as a Frisbee,” Bill Rosenblatt of told me.
founder and CEO of ReDigi, John Ossemacher, says if this law applies to
physical albums, it should also apply to digital albums.
see it very, very clearly that a copyright good is a copyright good and
buyers of those copyright goods are entitled to certain protections
under the law, ” says Ossenmacher. “Those apply to digital just as much
as they apply to any format.”
The transcripts of the court case
show just how complicated this issue can get. It veers from discussions
of law and legal precedent to these pretty existential questions.
you really own something if it’s just a bunch of ones and zeroes on
your computer? If you take a digital song and you move someplace else,
did you actually move it or did you just make a copy and destroy the
And, like so many discussions that touch on the nature of existence, the discussion in the courtroom led to Star Trek:
COURT: I kept thinking about this, but — I’m not a Trekkie, but I kept
thinking it’s the difference from Captain Kirk going from the Enterprise
to the planet through that transporter thing, where he’s not
duplicated, to the cloning where there’s a good and a bad Captain Kirk
where they’re both running around. I think one is a copy and the other
is — the other was transported and it’s only one Captain Kirk.
MANDEL: Right. And, you know, that’s part of the problem we have at a
basic level because it’s not Star Trek here, and I don’t think they’re
really saying —
THE COURT: Wouldn’t it be cool if it were?
Also, Willy Wonka:
ADELMAN: I mean, one of the examples I was thinking of was Willy Wonka.
Remember when they put Tommy on the stage. They beamed him, and you saw
the particles go across the top and, boom, there he was, miniaturized,
but still him in that TV. What’s so hard to believe?
all the references to the future and new technology, it was a word from
the 1970s that was really at the heart of this case: phonorecord.
sale doctrine states that “the owner of a particular copy or
phonorecord lawfully made” is entitled “to sell or otherwise dispose of
the possession of that copy or phonorecord.”
The lawyers for
Capitol argued that ReDigi couldn’t be protected by first sale because
the process of selling digital music through the company’s platform
created a copy of the music file, a “new phonorecord.”
In the end, the judge sided with Capitol. He wrote:
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.
So does that mean you can’t sell your MP3s? No. It just means that you can’t sell them on ReDigi.
judge said that the first sale doctrine does apply to digital works,
but it only protects the sale of that ” ‘particular’ phonorecord, be it a
computer hard disk, iPod, or other memory device onto which the file
was originally downloaded.”
In other words, the judge said you
can sell your old MP3s — as long as you sell them along with whatever
device you used to download the MP3s in the first place.
Capitol Records declined to comment for this story.
Schultz, a law professor at the University of California, Berkeley, who
used to work for the Electronic Frontier Foundation, said that the
ruling may kill off the used-book and record stores of the digital age.
“There is a lot of value both economic and social that we get from
having secondary markets,” he told me.
The people at ReDigi say
they’ll appeal the ruling. They also say they’ve created new
technology, “ReDigi 2.0,” to comply with the ruling. With the new
technology, ReDigi customers who buy new MP3’s will have the MP3s sent
directly to ReDigi’s servers in the cloud.