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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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  • AKA "You can't have your cake and eat it too."

    • MAFIAA wants both (Score:2, Insightful)

      by Taco Cowboy (5327)

      Or they wouldn't be MAFIAA, would they?

      • by Walterk (124748)

        "Hey, that's an awfully good cake you have there. It would be a shame if... something.. were to happen to it.."

    • by Spad (470073) <slashdot@noSpam.spad.co.uk> on Thursday February 02, 2012 @09:05AM (#38901835) Homepage

      In other news, the RIAA have lobbied to introduce new legislation today requiring that all cakes are sold with a second, identical cake to permit posession and consumption without additional cost to an already struggling entertainment industry.

      • by jbeaupre (752124)

        In yet more news, RIAA sues itself for making an unauthorized copy of a cake. In court filings, RIAA demands that Betty Crocker turn over the list of John Does going by the acronym RIAA.

    • AKA "You can't have your cake and eat it too."

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

    • by mosb1000 (710161)

      Oh, but they can.

    • by v1 (525388)

      AKA "You can't have your cake and eat it too."

      exactly what I was thinking. They want to have your cake, they want to have my cake, and they want to eat them both. I bet their lawyers are running around in tight circles right now trying to figure out how to defend their favorable positions in both interpretations of the law in the same court case. I hope their heads EXPLODE.

      • Of course, us REAL geeks already know the truth: The cake is a lie.

      • Google is calling this out under the "Cloud Computing" header, but taken straight up, this is close to the big slam that would end the copyright lawsuits.

        (Checks summary again)

        It's a powerful argument if it doesn't get outright squashed by people factors. Either it's not a material object and not subject to the nasty penalties, or it is an object, so that once "someone" (read a "warehouse" corporation") buys a copy, that entity can then resell it however it likes as a Used Item. So the Warehouse Corp stocks

    • Get 'em NYCL!

      OK. Will do.

      • by bfandreas (603438)
        Is this actually as clear cut as the blurb makes it sound? I can't fathom Capitol actually is that stupid...or were they simply not expecting to be caught on something that obvious?
        Forgive me but I always thought this is the kind of crap judges throw out of their court rooms. With menaces.
        I'd be pissed if somebody pulled a stunt like that.
  • " Google argued that '[t]he continued vitality of the cloud computing industry—which constituted an estimated $41 billion dollar global market in 2010"

    We certainly can't let the law get in way of making money.

    • by Maximum Prophet (716608) on Thursday February 02, 2012 @09:05AM (#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.
    • by Joehonkie (665142) on Thursday February 02, 2012 @09:09AM (#38901871) Homepage
      "We certainly can't let the law get in way of making money." That's been the RIAA's argument so far...
    • by Anonymous Coward on Thursday February 02, 2012 @09:17AM (#38901949)

      Well the money is certainly a good reason for Google to be involved, and good for the court to know it's not just considering an academic issue.

      On the other hand, Google's actual argument doesn't depend on money. And they are right in a very obvious sense. When you need to upgrade your DVD to a bluray, they tell you " you only own the media, you need to buy a new one". When you complain about how you shouldn't have to pay $25 for a DVD that costs less than a dollar to manufacture, they tell you " the price of the media isn't relevant, your paying for a license." they've been playing all kinds of games like that. It's always " heads I win, tails you lose".

    • by m.ducharme (1082683) on Thursday February 02, 2012 @09:27AM (#38902061)

      It's about more than just money --- it's a policy argument. the argument is that choking off such a large market would have much greater effects than just reducing the revenue streams of Google, Amazon and others. Employees would be laid off, businesses that rely on the services would suffer (including small sole proprietorships), the economy would probably be measurably affected. Courts generally have some obligation to consider these matters when they render judgments.

      • I've got to agree. Especially when the entertainment industry is claiming "We need you to do X to save our industry from losing money/jobs." If the money/jobs they are losing is more than offset by the money/jobs that the technology industry gains by not doing X, then the economic argument for X is lessened.

    • by eggstasy (458692)

      Well, would you rather live in a prosperous country where people are well-paid and jobs are plentiful?
      Not sure about the RIAA, but Google makes more money than half the MPAA put together. (I did the math a while ago).
      To be quite honest I don't know why Google doesn't simply buy them out and dump the "long tail" on Youtube.

  • by Maximum Prophet (716608) on Thursday February 02, 2012 @09:10AM (#38901883)
    Real lawyers can clarify, but AFAIK, two separate courts in separate decisions can decide that A is true, and that A is not true.

    Is there any law or principle that the "system" has to resolve logical errors like this?
    • Circuit Split (Score:5, Informative)

      by langelgjm (860756) on Thursday February 02, 2012 @09:16AM (#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.
    • That's what the appeal process and supreme courts are for. There's only one supreme court per state (for state issues) and one federal supreme court so that the final saying is, well, final and non-contradictory.

          OG.

    • Re: (Score:2, Redundant)

      by robot256 (1635039)
      While it is possible for two separate courts to come to conflicting conclusions, it seems that Google's biggest worry should be that one judge will award damages based on both interpretations simultaneously. This would set a precedent allowing both distribution and counterfeiting laws to be abused in digital information cases, defining mp3 files as some sort of "hyper-product" that can be controlled in any manner the copyright owner likes.
    • by Kjella (173770)

      Not in general. But those cases will then typically be cited in the next lawsuit over A and often end up with some appellate or supreme court taking them on if the lower court decisions are conflicting. As far as I know it doesn't go back to resolve things either, just going forward the precedent is now set that the law says so and so. That only applies to findings of law though, when it comes to findings of facts pretty much anything can happen as they interpret the evidence differently.

    • by westlake (615356)

      Real lawyers can clarify, but AFAIK, two separate courts in separate decisions can decide that A is true, and that A is not true.

      Context matters.

      A can be true in one set of circumstances and A can be false in another.

    • by forkfail (228161)

      It's because our legal system allows multiple inheritance...

    • Ever hear of the guy that successfully defended a small claims case by arguing all three of the following simultaneously?

      1) I never borrowed my neighbor's lawnmower.

      2) My neighbor's lawnmower isn't broken.

      3) My neighbor's lawnmower was already broken when I borrowed it.

      Only one of the three arguments needed to be true for the neighbor to lose the case. How the guy didn't get charged with perjury is beyond me.

  • by advid.net (595837) <slashdot@advid. n e t> on Thursday February 02, 2012 @09:15AM (#38901931) Journal

    but they can't be material objects under one and not the other

    Or could they ?

    We already have demonstrated wave-particle duality at macroscopic scale. We could also understand that phonorecords are indeed dual objects, both material and non-material, depending on the way we consider them.

    I foresee a new law of physics where those objects tend to please their copyright owners and thus switch from one concept to another accordingly.

    • by cvtan (752695)
      So the record companies are both morons AND idiots!
    • by bondsbw (888959) on Thursday February 02, 2012 @09:32AM (#38902121)

      Ah, I understand now. So each individual copy of the mp3 is dually material and non-material, until observed, at which time it becomes $80,000 per copy.

      Reconciling quantum physics with general relativity is much easier than making sense of the RIAA.

    • by robot256 (1635039) on Thursday February 02, 2012 @10:14AM (#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 cfulmer (3166)

        At least that part falls apart. But, the main part of the case claims an infringement of the right to make copies, not an infringement of the distribution right. The argument is, approximately, "You claim to be re-selling electronic goods. But, to do that, this is what you do: (1) copy the mp3 file from the seller's computer to yours, (2) delete the file from the seller's computer, (3) copy the mp3 file to the buyer's computer, (4) delete the copy on your computer. The verb 'copy' appears in there twice.

        • by wierd_w (1375923)

          This argument, while factually true, is pedantic and broken. It also implies that the riaa is willfully selling unusable goods.

          Take an mp3 player. A cheap one, or an ipod. One that doesn't have removable flash storage. To get the mp3 onto the drvice, the "buyer" must copy it with itunes or with a file manager. A copy is made.

          Additionally, an mp3 on external storage cannot be directly manipulated/processed. It has to be copied into ram memory. This is true on all noteworthy computing architectures. This is a

  • by elrous0 (869638) * on Thursday February 02, 2012 @09:18AM (#38901957)

    And the media industry has millions in campaign donations to MAKE them both.

  • by equex (747231) on Thursday February 02, 2012 @09:25AM (#38902033) Homepage
    At last, a big player plays the doctrine of first sale-card. This just got interesting. Google is neither pure good nor evil, they are sort of chaotic neutral, i.e. they serve their own purposes, but once in a while they dance on the table too.
  • From Google's letter:

    The final principle concerns the interplay between two provisions of the Copyright Act which, by their plain language, are limited to material objects: the distribution right, Section 106(3), and the first sale doctrine, Section 109. Both provisions deal with copies and phonorecords, which are material objects in which copyrighted works are fixed.

    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.

    Google is correct that the Capitol Records brief is inconsistent:

    The present motion argues that the first sale doctrine—which permits the owner of a lawfully-made copy or phonorecord to sell it without needing the copyright owner’s permission—cannot apply to this case because no material objects change hands. But it also argues that ReDigi infringes Capitol’s exclusive right to “distribute copies or phonorecords,” despite its admission that no material objects are distributed. Either both provisions apply, and ReDigi’s service may be protected by the first sale doctrine, or neither applies, and ReDigi’s service does not infringe the distribution right.

    But they should be focusing on that inconsistency, rather than claiming the statute says something it doesn't. It almost seems like Google is trying to argue that First Sale doesn't apply, because "copies are not material objects".

    • by kiwimate (458274)

      I agree. My thought [slashdot.org] is they'll update the law to include MP3s under the cover of computer programs.

    • by devjoe (88696) on Thursday February 02, 2012 @09:53AM (#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 @09:58AM (#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

        • At the time the mp3 is saved on a disk or flash memory, it is materialized. Even if it shares the device with other files, it really has a some sectors or cells for itself. Just as some works were carved on wax or are pressed as vinyl and CD.

          However, the work is communicated via non-material means.

          We can say that the mp3 is sold as a non material stream, then materialized by the buyer. (I don't refer here to music streaming, but to the point that any download is a byte stream)

      • >digitally transmitting them to the general public, as might happen on YouTube or p2p networks.

        What if Youtube changes systems and becomes like Fakebook with only people on your fakes list can view it.

    • by Dhalka226 (559740) on Thursday February 02, 2012 @10:11AM (#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".
    • If first sale does not apply than Capitol Records must have sold their copyright. If they sold the copyright, then we can ignore this whole battle because they have no right to sue. Now, the owners can distribute the work as copies instead because they are the copyright holder. I like the direction Google is taking this.
  • I'm a big fan of you, NewYorkCountryLawyer, but you really should have disclosed in the summary that you are currently counsel for the defendant, ReDigi, in this court case.

    Anyway, I'm glad to hear that you seem to have found a heavy-weight ally in this case.

    • Re:Disclosure? (Score:4, Interesting)

      by NewYorkCountryLawyer (912032) * <ray.beckermanlegal@com> on Thursday February 02, 2012 @10:11AM (#38902511) Homepage Journal

      I'm a big fan of you, NewYorkCountryLawyer, but you really should have disclosed in the summary that you are currently counsel for the defendant, ReDigi, in this court case.

      If I'd done that, it would have seemed like self promotion. But really, it didn't take you long to find out, did you? Plus, it's not like I said anything controversial either in the Slashdot post or in my blog post; I just report the news on these cases, and leave it to others to discuss the issues.

  • ... if Capitol Records hasn't become "immaterial".
  • Precedent? (Score:4, Interesting)

    by Muad'Dave (255648) on Thursday February 02, 2012 @10:18AM (#38902565) Homepage

    How may times have you heard commercials saying "Own it on DVD today!" or "Own it on Blu-ray Today!" ? Since they mention 'it', referring to the advertised movie, and the medium, the DVD or the blu-ray disk, they're saying that the ownership is for the movie, not the medium. Note also that they say 'OWN' it, not 'license' it.

    • by b4dc0d3r (1268512)

      I like your argument. But it would not be precedent. Further, only those people who bought the specific disc advertised with this wording, and who want to re-sell it but cannot, would have standing to use this. If I bought it on disc and went to a used movie place and sold it, they would legally be able to buy and resell it, and I would not be hampered in any way.

      If you purchase a digital copy (or license), this wording is irrelevant. You could make the argument, but it would as I understand it not hold

  • by L3370 (1421413) on Thursday February 02, 2012 @10:44AM (#38902787)
    There was a discussion on /. a while back regarding this....saying the entire music industry is worth rougthly $10bn US.

    Google could pony up and buy Capitol Records completely, release all copyrights held, then break up and sell what worthless assets it has left in a fire sale. While they probably have the capability to purchase the entire industry, they only need to stop there with Capitol Records aquisition.

    The rest of the industry will STFU and play nice.
    • Google could pony up and buy Capitol Records completely, release all copyrights held, then break up and sell what worthless assets it has left in a fire sale. While they probably have the capability to purchase the entire industry, they only need to stop there with Capitol Records aquisition.

      Maybe they feel the present management of Capitol Records is doing a good job of bringing the price down still further.

  • In mechanical licensing - which is the fee due to the composer and lyricist, a "Permanent Digital Download" is treated nearly identically to a track on a CD or a song recorded to a record or tape. The fee is set by statute (http://www.copyright.gov/carp/m200a.pdf), though if you are going to produce a lot of copies, you can negotiate directly with the owners or through HFA (Harry Fox Agency) for those it represents.

    This strikes directly to the heart of the matter: if the copyright holders are getting paid

    • by DragonTHC (208439)

      This actually matters to me quite a bit, as I am involved in the distribution of very low quantity recordings (~120 copies at a time) on CD.

      So you're a music pirate eh lad?

    • by Zinho (17895)

      At least the judge is giving broad hints that NYCL ought to be using the Google brief as notes for his own arguments. It sounds like the judge is open to the ideas Google laid out, but would rather hear them from Mr. Beckerman instead.

  • confused? (Score:4, Informative)

    by DragonTHC (208439) <Dragon&gamerslastwill,com> on Thursday February 02, 2012 @11:40AM (#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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