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Google Asks Court Not To Enjoin ReDigi 185

Posted by timothy
from the round-trip-on-a-one-way-ticket dept.
NewYorkCountryLawyer writes "Google has sought leave to submit an amicus curiae brief against Capitol Records' preliminary injunction motion in Capitol Records v. ReDigi. In their letter seeking pre-motion conference or permission to file (PDF) Google argued that '[t]he continued vitality of the cloud computing industry — which constituted an estimated 41 billion dollar global market in 2010 — depends in large part on a few key legal principles that the preliminary injunction motion implicates.' Among them, Google argued, is the fact that mp3 files either are not 'material objects' and therefore not subject to the distribution right articulated in 17 USC 106(3) for 'copies and phonorecords,' or they are material objects and therefore subject to the 'first sale' exception to the distribution right articulated in 17 USC 109, but they can't be — as Capitol Records contends — material objects under one and not the other."
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Google Asks Court Not To Enjoin ReDigi

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  • by Maximum Prophet (716608) on Thursday February 02, 2012 @10:05AM (#38901837)
    Check out just about any court decision involving US treaties with Native Americans. Money talk almost always wins. Doesn't get it's way 100%, but close enough.
  • Re:Eh (Score:5, Informative)

    by sosume (680416) on Thursday February 02, 2012 @10:10AM (#38901877) Journal

    google asks the court to decide wether:
    - files (eg mp3) are material objects which can be resold etc or:
    - files are not material and therefore the laws regarding those are invalid.

  • Circuit Split (Score:5, Informative)

    by langelgjm (860756) on Thursday February 02, 2012 @10:16AM (#38901945) Journal
    You're probably thinking of a circuit split [wikipedia.org]. These can be resolved if the Supreme Court decides to take a case that involves a circuit split; otherwise, lower courts would have to abide by the authority of their particular circuit.
  • Re:Eh (Score:5, Informative)

    by devjoe (88696) on Thursday February 02, 2012 @10:31AM (#38902103)

    IANAL, but in a recent story, we heard that Capital Records was suing ReDigi, a service that allows people to re-sell used MP3s, claiming that they such resale is not permitted by law. Google wants to put forth an argument that it is.

    The exclusive rights a copyright holder has (which are enumerated in 17 USC 106) include the exclusive right to make and distribute "copies" and "phonorecords". There are some other exclusive rights such as making derivative works and public performance, but they are not relevant here. But under 17 USC 109, the owner of a lawfully made "copy" or "phonorecord" is permitted to sell that copy or phonorecord, without any authority from the copyright owner. Google argues that either owners of MP3s have this resale right, or else MP3s are considered neither of these things and their creation and distribution is not restricted by law at all, because the same terms are used in both sections of the law.

    In 17 USC 101 [cornell.edu] both of these words are defined as "material objects" of some sort. Capitol apparently argued that MP3s are not material objects and thus not subject to the right of resale, but Google pointed out that this same argument would make the actions of copying and distributing MP3s not fall under the restrictions of copyright at all.

  • by HungryMonkey (1887382) on Thursday February 02, 2012 @10:32AM (#38902117)

    I thought the original phrase was "You can't eat your cake and have it too"

    The original phrase was "wolde you bothe eate your cake, and have your cake?" (“A dialogue Conteinyng the Nomber in Effect of All the Prouerbes in the Englishe Tongue“ , John Heywood, 1546)

  • by agentgonzo (1026204) on Thursday February 02, 2012 @10:35AM (#38902147)
    I prefer the Italian: avere la botte piena e la moglie ubriaca ("to have the barrel full and the wife drunk")
  • by devjoe (88696) on Thursday February 02, 2012 @10:53AM (#38902337)

    But 17 USC 106(3) just says:

    Subject to sections 107 through 122, the owner of copyright under this title has the exclusive rights to do and to authorize any of the following: ...(3) to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending;

    Now, Google could say that "copies" implies a material object, but it's certainly not there in the plain language. In fact, 17 USC 106(6) goes on to discuss digital audio transmissions, and doesn't distinguish them as being non-material.

    Actually it is there, but you have to go up to 17 USC 101, Definitions [cornell.edu] to see that they are defined as material objects. But more importantly, the same "copies and phonorecords" wording is used in both 17 USC 106 and 17 USC 109, so regardless of how they are defined, the same objects subject to copyright restrictions, once legally obtained, are also resellable.

    17 USC 106(6) is interesting. It specifically restricts public performance by digital transmission, which might be seen as drawing a distinction between digitally transmitting them to specific people you know and digitally transmitting them to the general public, as might happen on YouTube or p2p networks.

  • by bytestorm (1296659) on Thursday February 02, 2012 @10:58AM (#38902387)
    Parent is right:

    US Code, Title 17,101 Definitions [cornell.edu]

    “Copies” are material objects, other than phonorecords, in which a work is fixed by any method now known or later developed, and from which the work can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. The term “copies” includes the material object, other than a phonorecord, in which the work is first fixed.

    “Phonorecords” are material objects in which sounds, other than those accompanying a motion picture or other audiovisual work, are fixed by any method now known or later developed, and from which the sounds can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. The term “phonorecords” includes the material object in which the sounds are first fixed.

    They are very much defined as physical objects

  • by Dhalka226 (559740) on Thursday February 02, 2012 @11:11AM (#38902517)

    It almost seems like Google is trying to argue that First Sale doesn't apply, because "copies are not material objects".

    I don't agree with you, but even if I did, don't bother looking for these kind of legal/logical gotcha's; that's not how the legal system works.

    It is not at all uncommon to see a defense team put forth an argument like: I didn't kill her. And even if I did, it was self defense. And even if it wasn't, there were extenuating circumstances. And even if there weren't, it was a crime of passion. And if not, I'm a great guy and deserve to be convicted under a lesser crime! (They don't quite phrase it that way of course, but that is the essence of the argument.)

    Logically, people look at that and go -- "what the fuck? What are you arguing here?" But legally it is not only sound strategy, but fully expected and required of a competent defense. It's similar in civil law. Remember, much as it might seem otherwise sometimes it's not a defendent/respondent's job to prove innocence -- it's to poke enough holes that the other side can't prove guilt/liability.

    As I said, though, I don't agree with your conclusion. Google is simply saying "you guys can't have it both ways." They're not taking a position on the issues they're raising, at least not in the quotes you have; they're simply pointing out what they consider to be the plaintiff trying to have it both ways and saying "sorry, no. Pick one: It's a material object subject to one law or a non-material object not subject to either."

  • Both "copies" and "phonorecords" are defined terms in the Copyright Act. They are both defined in 17 USC 101 [cornell.edu] as "material objects".
  • by robot256 (1635039) on Thursday February 02, 2012 @11:14AM (#38902539)
    This comment [slashdot.org] does a very nice job of summarizing Google's argument. Basically, they are saying that since only material reproductions are covered under distribution rights, the only way you can control the distribution of mp3 files is if they are material reproductions. However, all material reproductions are also covered by the right of resale, so in that case ReDigi is a lawful reseller. If, on the other hand, mp3 files are not material reproductions and not subject to the right of resale, then they are not subject to the right of exclusive production either. Approached logically, the case falls apart no matter what stance you take. The only way for them to prevail is if the judge decides to apply half the law and ignore the other half.
  • by Tsingi (870990) <graham.rick@[ ]il.com ['gma' in gap]> on Thursday February 02, 2012 @11:19AM (#38902571)

    See that's the exact attitude that's gotten us into such a mess. Corporations are made of people! Yes, they exist to make money but that's not an excuse to leave ethics at the door, you can (and should) make money without being a dickhead.

    Yes, and while technically the bad things that corporations do are done by people, those people are not held accountable. If they were, half of the banking industry would be in jail.

  • confused? (Score:4, Informative)

    by DragonTHC (208439) <Dragon@NoSPAM.gamerslastwill.com> on Thursday February 02, 2012 @12:40PM (#38903543) Homepage Journal

    I see you're all dazzled by the big words.

    Google is saying, since cloud computing works on the premise that one file is stored and access is given based on license, then Capitol cannot argue that they are material goods. If they were material goods, they would be subject to first sale doctrine and the lawsuit falls apart.

    If they are not material goods, the plaintiffs must argue that the license is non-transferable and not subject to sale.

    This is what I've been saying for years regarding the whole piracy debate for music. Is it a product or a license. The RIAA seems to want both, but only when it suits them. There are not a lot of legal precedents regarding this matter.

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