Capitol Records Motion To Enjoin ReDigi Denied 103
NewYorkCountryLawyer writes "The motion by Capitol Records for a preliminary injunction against used digital music marketplace ReDigi has been denied. After hearing almost two hours of oral argument by attorneys for both sides, Judge Richard J. Sullivan ruled from the bench (PDF), holding that plaintiff had failed to show 'irreparable harm.'"
Greedy Scum (Score:5, Insightful)
These greedy scum cannot get enough and know no bounds. At least some sanity is left in the legal system as this ruling shows.
Re:Greedy Scum (Score:5, Insightful)
Re:Greedy Scum (Score:5, Insightful)
Or they will "buy" a new law...
Re:Greedy Scum (Score:5, Funny)
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I'm just waiting for the day that they try to sue the judge and say that he has caused "irreperable harm" to their lawsuit.
It wouldn't surprise me :)
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The crap judge said that their lawsuit had merit, and was likely to prevail in court. He just didn't think Capitol had show irreparable harm warranting an immediate injunction before trial.
So yes, he's a crap judge, but like most crap judges biased towards big business and not existing law like the first sale doctrine, or the intent of that law. Never forget who helped with the campaign bills to put the judges on the bench in the first place.
There is no such thing as a fair trial until you can ensure fair
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He who has the gold, makes the rule?
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Unfortunately, yes.
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Re:Greedy Scum (Score:5, Informative)
What happened is the judge decided that "if the plaintiff keeps doing what they're doing, they are not doing so much damage that they will send Capitol Records into bankruptcy." This ruling only means they won't be taken down today.
If Redigi loses the case, though, the judge will still hold them liable for any actions for the entire time they've been operating.
It's a good sign for Redigi that the judge doesn't think the damages are so astronomically high that they would bankrupt Capitol. But it says nothing about the potential outcome of the suit.
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Thats is how I understand it also.
Read Ray Beckermann's motion and enjoy! (Score:5, Interesting)
Congrats to NewYorkCountryLawyer.
Re:Read Ray Beckermann's motion and enjoy! (Score:5, Interesting)
If someone had told me, when I was 18, that one day I'd be reading court transcripts with great interest, I'd have thought he was insane.
And yet, here I am! Yet another way the world has changed, since way back then...
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"If you make a copy and then put it up somewhere else in order to distribute it, it isn't that particular copy anymore that you're distributing. And that is basically the whole essence of the first sale doctrine is that it didn't include the right to reproduction any more than if I had a book or CD that I could photocopy, give the copy to my friend, and then decide I don't want this book anymore, I'm going to throw the book in the garbage. That wouldn't be co
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Good thing I still buy physical media.
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Page 27, lines 3 - 12. Mr Mandel for plaintiff: "If you make a copy and then put it up somewhere else in order to distribute it, it isn't that particular copy anymore that you're distributing. And that is basically the whole essence of the first sale doctrine is that it didn't include the right to reproduction any more than if I had a book or CD that I could photocopy, give the copy to my friend, and then decide I don't want this book anymore, I'm going to throw the book in the garbage. That wouldn't be covered by the first sale doctrine, and neither is this. It's logically no different. "
In order to use a digital work, the work must be copied into computer memory, and if compressed or DRMed must be manipulated by the device before it can be listen to or viewed. (Even if only a little at a time)
The courts have decided that if you pay for a work, you get to do what is necessary to use it. You can even make a copy in the form of a backup to prepare for an accident.
Since a small amount of copying is necessary to use an iTunes download, it's not much of a stretch for the courts to allow a
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To sell the file, you mark it as for sale, which is a manual process (you must select the files and press I Wish To Sell
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Actually, it's a spurious argument, because you're not buying the copy, you're buying a license to possess a copy, as the copyright industry keeps telling us. You are not transferring the copy when you resell, you are transferring the right to the copy.
The real problem that sale itself becomes largely impossible if you permit resale of electronic copies due to the speed of transfer. Consider any piece of music, any film, or any book that you've bought a copy of. How often do you actually use them? I
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A film at iPlayer HD quality would take me 36 minutes to download on my current Internet connection, and 18 minutes at the speed of the connection that my ISP is upgrading me to (their new lowest-speed tier) this year. Even if you require the transfer of the data, then this just adds 18 minutes to the duration of the film for my period of ownership (I can start watching it before it's finished transferring it, but I can't start returning it until I no longer want to own it). So a typical film can be sold and returned every 2 hours. In the course of a year, a single copy can be sold and returned over 4,000 times (there is probably someone in one time zone that wants to watch it at any given time).
This is true, but you also have to consider the time / PITA it would take to do this. Considering the cost of most media (even as inflated as they are) it's not worth your time to do this. Granted, you could attempt to start some kind of brokerage service that would do all that for you behind the scenes, but then you have that cost added into the mix, as well as the pain of having all your media in a perpetual state of limbo.
So once you've bought all your media and resold it (for slightly less of course)
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This is true, but you also have to consider the time / PITA it would take to do this
What PITA? The point is, if this were allowed, then a service could be set up to do this. To its users, it would appear like a streaming / rental service, but instead of paying the studios a higher price for a streaming license it would just pay them the $10 per copy and stream it to as many people as wanted it (but only one at a time).
So once you've bought all your media and resold it (for slightly less of course) each month
Huh? Why for slightly less? We're talking about digital copies. There is no detectable difference between the original and the version that 4,000 people have watched alr
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What PITA? The point is, if this were allowed, then a service could be set up to do this. To its users, it would appear like a streaming / rental service, but instead of paying the studios a higher price for a streaming license it would just pay them the $10 per copy and stream it to as many people as wanted it (but only one at a time).
I don't understand what you mean here. Are you saying the service would buy a copy, and then stream it to only one person at a time? If so I think you're delusional. If you're saying that I, myself will pay the $10 and stream it, getting kickbacks from all the people who listen to it, you're still delusional. Both methods are a bit too close to "distribution" in my eyes, and in any case what you're describing is a brokerage service in both cases, which I discussed later in the paragraph you quoted. Or
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I don't understand what you mean here. Are you saying the service would buy a copy, and then stream it to only one person at a time?
If resale of electronic items is permitted under the first sale doctrine, then it is 100% legal for a service to buy one film from, say, iTunes or Amazon, sell it for one token in their own currency, stream it, and then buy it back in exchange for one token in their electronic currency. A service like Netflix, instead of paying hundreds of thousands of dollars for streaming rights could just buy a few hundred copies - sell them and buy them back, completely transparently to the user.
Reading the rest of
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Reading the rest of your post, it's unclear whether you suffer from an inability to read or an inability to think, but it's clear that you have failed to comprehend either my original post or my reply, so I'm not sure why I expect you to understand if I explain a third time.
Oh, is it ad hominem time already? Whatever.
I understand your post just fine: why license a film at a large cost so you can redistribute it, when Netflix can just buy a few hundred copies from Best Buy and then continually sell / buy them. My point is that it isn't that easy and the idea (as interesting as it is) has other problems.
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I understand your post just fine: why license a film at a large cost so you can redistribute it, when Netflix can just buy a few hundred copies from Best Buy and then continually sell / buy them. My point is that it isn't that easy and the idea (as interesting as it is) has other problems.
No more issues than "Blockbuster Video" being an unlicensed distributor. Charging for a rental of a non-rental-licensed media has been done for years for videos. So why is that only allowed on DVD/VHS/BR media, and not Internet with a client that temporarily transfers "ownership" to the PC, plays the file, then transfers "ownership" back to Netflix? "it has other problems" isn't an argument against. It's a statement of "I don't think that will work, but I don't know why, so I'll make some vague assertio
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you're not buying the copy, you're buying a license to possess a copy, as the copyright industry keeps telling us
That is NOT what iTunes is saying. It says you are buying the file and that title passes to you. See iTunes terms and conditions, exhibit A to Ray Beckerman declaration, posted here [blogger.com]
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Hi Ray. You may be right, but when you back up your assertion with a link that says 'please log in to view this page' then I am forced to disagree citing this source.
Sorry my friend :) Here [blogspot.com] is the link to which I meant to refer (he said sheepishly).
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The file leaves the sellers PC for cloud storage; It is deleted from the seller's PC by the client software. There is only one copy of the file. The file is assigned a unique identifier to prevent duplicates being sold. The identifier is assigned to the owner's acco
Re:Read Ray Beckermann's motion and enjoy! (Score:5, Funny)
And what is being sold by ReDigi is the right to access a file stored upon their cloud storage service which has been offered for sale by the original owner. The file itself is the original taken from the owner, and transferred to the purchaser. The file leaves the sellers PC for cloud storage; It is deleted from the seller's PC by the client software. There is only one copy of the file. The file is assigned a unique identifier to prevent duplicates being sold. The identifier is assigned to the owner's account so they may access the file. When the file is marked for sale and thereby sold, the unique ID is assigned to the buyers' account; The file itself is not copied, moved, duplicated, shifted, or anything else. The new account may access that very same uncopied file, and the seller may not. This is the important distinction being made; The file is the same one the original owner bought the license to own, and it is this file that is on the cloud service, this file (license to own) which is purchased.
Looks to me like you've been RTFA. Are you new here?
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Looks to me like you've been RTFA. Are you new here?
Just trying to set a new, better precedent. Then again, aren't we both?
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does it also know out to delete it off my CD backup? how about the HDD in my safety deposit box? Phone? iPod? tablet? etc? Seems a bit useless to me.
All I would have to do is copy my files before importing them into the tool... If it was a song from Amazon MP3 there may be no way to tell a new copy from the copy I sold 2 months ago.
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If a simple layperson like myself is allowed, may I say that if you read only one law brief this entire year, this is the one you should read.
Awesome work Ray!
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I was reading Ray's brief yesterday at work. I started to chuckle on the first page. Mid way through the second page I was laughing out loud so much that my co-workers asked me what I was reading. Imagine their disbelief when I responded "A law brief." If a simple layperson like myself is allowed, may I say that if you read only one law brief this entire year, this is the one you should read. Awesome work Ray!
Wow thank you very much for that :) But let me make one correction. It wasn't "Ray's brief", it was "Ray and Ty's brief".
enjoyable lines thus far (Score:5, Interesting)
My favorites parts so far:
(p43, lines 15-18)
Mr. Beckerman: There has to be evidence on this side and some evidence on that side. There can't be some evidence on this side and some lawyer speculating as to what he thinks may be going on.
(p44, lines 10-12)
[Beckerman continues...]
where is that evidence? There has to be some threshold for bringing a lawsuit instead of terrorizing people in the first place.
(aside, is there a Godwin equivalent to equating things with terrorizing?)
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"Terrorize" was and is a word completely separate from "terrorism". The Wolf in Red Riding Hood terrorized the Granny; that doesn't make the Wolf a terrorist.
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A hot bench is when the judge has a lot of questions for the lawyers.
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Usually it means a well-informed judge, one who is taking a very active interest and is trying hard to understand the evidence. I would say it's a "good" thing because the ruling is likely to be based on a fair interpretation of both the law and facts. That doesn't mean it will weigh towards either the plaintiff or defendant, but that the ruling will be seen as solid.
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Usually it means a well-informed judge, one who is taking a very active interest and is trying hard to understand the evidence. I would say it's a "good" thing because the ruling is likely to be based on a fair interpretation of both the law and facts. That doesn't mean it will weigh towards either the plaintiff or defendant, but that the ruling will be seen as solid.
... which makes the fact that the Judge ruled from the bench even more telling. It means that the Judge thought the evidence presented was so obvious, so unmistakable, and so overwhelmingly in favor of one side that further, reasoned review was unnecessary.
Judges rarely reach those conclusions.
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Oh, and it might just indicate a judge who is trying to provoke each side to elicit a statement revealing hidden intentions. Someone carelessly uttering a "yeah, we knew this part was wrong, but ...", or a "Fair Use doesn't apply to digital" kind of statement. I don't think either side of this case is being represented by Amateur Hour at the Bar, however, so that's unlikely to yield fruit.
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A hot bench is when the judge has a lot of questions for the lawyers.
Not necessarily. What I mean when I say "hot bench" is a court that has really read the papers, and done some homework.
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What is "a hot bench"?
It means the judge or judges have read the briefs thoroughly and are highly prepared.
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Congrats to NewYorkCountryLawyer.
Thanks Mister Liberty, but we have a lot of work ahead of us. At least it is clear that we have a well informed, serious judge. Which makes me confident we will ultimately prevail.
Since these are legally purchased mp3s... (Score:4, Insightful)
I hope someone things of employing this in the ebook market. As of now, prices for ebooks are still wildly overpriced and without any way of reselling them, they're simply not worth it much of the time. If this were to come out for the ebook industry, it could help sales. I know personally, there are many ebooks that are just too expensive (especially when selling them later isn't an option -- a legal one anyway). This could help individuals to be able to afford the overpriced ebooks on the market by allowing them to make up some of the money by selling them later. It'll probably get just as much resistance from publishers, but good ideas are often thrust back, aren't they?
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I can understand that it works that way and yet, at the same time, what prevents people from renaming the file or putting it elsewhere in order to keep a copy and yet sell it at the same time?
Well, that would be copyright infringement, and therefore illegal. So people won't do it, or so I would assume. Same as people don't take stuff out of shops without paying, because it is illegal.
In the end, things can change ownership without any payment being made. There must be millions of songs legally purchased where the owner has died meanwhile. So I would assume that their heirs are now the proper owners of that music. Or a couple buying music together with a joint account, and they get divorced, e
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Well, that would be copyright infringement, and therefore illegal. So people won't do it, or so I would assume.
It's a little idealistic to assume people won't do that. In fact, that quality is something that makes this system more appealing to most people. I mean, as mentioned in a previous post here on Slashdot, there isn't much physically preventing people from downloading pirated music. See this article here which was p
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The good thing is that this is the way it would work if you sold a used CD -- nothing stops you from ripping it before selling it, right? So there's nothing inherently different about the process.
One difference is with a CD you can pretty easilly tell the original from a copy (assuming here copies made with typical home equipment). Yes there is nothing stopping someone reselling the original and keeping a copy but they can't sell their copy twice without one of the buyers getting a dodgy copy.
Sites like redigi may do some checks to try and stop double resale but as the clones pop up that will get harder and harder to ensure.
One option would be to require all sites to register sale and resale of digi
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Their FAQ talks about removing it from your "computer and synced devices" but makes no mention of removing stuff from iTMS accounts. Do they really have an agreement with apple or other method for removing stuff from iTMS accounts? (it seems unlikely to me that apple would cooperate in such a venture given that they need to keep in the record companies good books)
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I can understand that it works that way and yet, at the same time, what prevents people from renaming the file or putting it elsewhere in order to keep a copy and yet sell it at the same time? (I'm sure the record companies made this argument)
Nothing, really. Their solution, for all the smoke and mirrors about 'revolutionary patent pending technology', sounds like it would make cheating a bit inconvenient, but far from difficult. However sophisticated their 'policing' software is, there'd be nothing to stop a user (e.g.) manually backing up their iPod to a second computer before each sale. The tracks will supposedly be wiped from the first (policed) computer, and from the iPod when it re-syncs, but not from the backup location.
If this were to come out for the ebook industry, it could help sales.
Harder to do this
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This could help individuals to be able to afford the overpriced ebooks on the market by allowing them to make up some of the money by selling them later.
No no NO!!! God damn it, they're overpriced! If people simply stopped paying outrageous sums for literally nothing the prices would have to come down.
And not all ebooks are overpriced, Cory Doctorow gives ebooks away for free, using them as advertising to sell real, physical books.
You don't buy a novel, you buy a BOOK. You own that book. You don;t buy music
ReDigi may still be liable for damages (Score:5, Informative)
Denying a preliminary injunction is not the same thing as saying ReDigi don't infringe on copyright. All the judge is saying is that this does not cause irreparable harm. That is: He believes any harm done can be repaired by ReDigi paying damages after the trial, so there's no need to shut them down now.
Re:ReDigi may still be liable for damages (Score:5, Insightful)
So how come MegaUpload didn't get the same kind of hearing? At the very least there should have been an opportunity for them to contest the shut down of their company in a US court before New Zealand was ordered to send in the elite anti-terror police unit.
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The Judge looked at the charges, mentally tosses out the bs, then looks at the defendants assets.
Megaupload: "These guys probably won't be doing business after this."
ReDigi: "If they are guilty they're probably good for the fines."
That's probably the difference (IANAL).
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Because it's a civil vs. a criminal case.
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Because it's a civil vs. a criminal case.
So if someone manages to convince the authorities that you are a criminal instead of suing you then basically you are fucked? There is no due process or chance to defend yourself, they just send in armed police and shut you down?
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Ongoing criminal activity is generally considered something that police are empowered to put a stop to.
ReDigi have done their homework (Score:5, Interesting)
Nothing really more to say, haven't followed this one that closely, but as I read in ArsTechnica ReDigi have made sure that their system is according to (their interpretation) of the law, which is still much higher level than Megaupload.
This case also will be really interesting, because it clashes author rights to control distribution of copyrighted work and first sale doctorine. And juge seems to be sane so whatever his decision will be I will treat with respect.
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A bigger problem (Score:4, Funny)
We should let Capitol dismantle the first sale doctrine, and you know why? The movie and record industries are America's most important source of everything! They bring in billions of dollars, and movies like Transformers underpin the very heart of what it is to be America. I just hope that religious fundamentalists, at home and abroad, don't realize the damage they could do, for example if they were to spray bullets around 1025 F ST N.W, 10th floor, Washington D.C. Oh the tragedy if a plane were to be slammed in to Capitol's offices!
I really hope they terrorists never discover America's soft underbelly, and in particular I hope that they don't fuck UMG and MPAA executives up their arses with splintered chair legs before setting them alight - this would be a massive insult to Americans! Screw you terrorists! So long as Lamar Smith lives (he draws Mohammed hentai) then America shall not fall! His address is easily locate or online, but he's perfectly safe in Austin or Washington, and is so tough that he requires far less security than less worthy targets.
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Not based on Hollywood Accounting ;-)
Oh the glorious irony, their tax dodge from year . now makes it look like they don't bring in enough money to be worth saving as an industry.
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Don't worry, politicians know how to judge industries worth saving based on contributions to their campaigns and to super PACs. The economics are merely indicators but campaign contributions tell the Truth.
And I am sure Hollywood accounting allows for plenty of lobbying and campaign contribution. After all, money spent on politicians can't be profit and if it's not profit then you don't have to give their share to the right holders or the government.
So lobbying is indeed compatible with Hollywood ac
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We should let Capitol dismantle the first sale doctrine, and you know why? The movie and record industries are America's most important source of everything! They bring in billions of dollars, and movies like Transformers underpin the very heart of what it is to be America.
I see you got the form letter back from your Senator, too.
Regarding the rest of your post, mock threats against senators just aren't as funny as they used to be. Pick on crazy Asian dictators instead, they're still in style today.
Very interesting territory (Score:5, Interesting)
The large majority of first-sale doctrine cases were about actual objects (e.g. CDs, books, Lego Playset, etc). This case is strictly about a digital object, which both exists and doesn't exist.
It exists in the fact that a storage medium (a physical object) contains it. It doesn't exist in the sense that the file cannot be handled traditionally.
I've felt that the law is severely lacking in the digital area but, in all honestly, found that it's difficult to write laws for something that can be created out of nothing. I believe in principle that I should be able to sell my MP3s if I don't want them anymore. There is obviously a market for them. But I don't see how this will work in a world where I can sell the object but still keep it at the same time.
This is not possible with tangible objects, at least not until the Star Trek replicator is invented.
Re:Very interesting territory (Score:4, Insightful)
The outcome if nothing else will set the value of a digital good to be a) the same as its physical counterpart (disc) or b) less than as it has no resale value.
If you can't sell that music you bought or licensed then its value should be much lower.
That isn't what this case is about (Score:1)
This case isn't about whether digital goods are real or not.
It's about you only get to choose one.
It's either real or it's not.
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This case isn't about whether digital goods are real or not. It's about you only get to choose one. It's either real or it's not.
Well said.
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The record companies have argued for years that downloading a record illegally was the same thing as stealing a CD from the store. I can only hope this argument comes back and slaps them in the face now.
My only concern now is : with iCloud (and other music stores), you can re-download the songs you've purchased as many times as you want, deleting the file from your computer will not be enough.
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"Star Trek replicator"
We have 3d scanners/printers. Today. Granted, they are not very cost effective yet.
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I believe in principle that I should be able to sell my MP3s if I don't want them anymore.
Unfortunately, the fair market price for a copy of a digital work is zero. This is the basic economic fact the industry and the courts need to catch up with.
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You aren't selling the MP3. You're selling the license to legally listen to it. Licenses and contracts get sold and traded all the time, and they don't physically exist. Yes they're usually (but not always) written on paper, but if you lose or destroy the original, a copy is usually a sufficient substitute. And if you sell the rights contained in the contract to someone else, there's no problem
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The media thing is unclear. Some software and DVDs will be replaced for a fee, but I have not seen something similar for audio CDs. The main issues I see here are with DRM and time. If these fuckers are trying to prevent me from making a backup, then what happens if my discs craps out in 10 years time? How about 20 years? Will they still be offering me a replacement for the content I already hold a license for, or will I be forced to buy a new one? That's certainly a blurring of the transaction, and they a
The oral argument (Score:4, Insightful)
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I like Mr. Mendel argue the length of the cable between hard drives makes a difference. I fail to see how uploading to redigi is different than moving a file between harddrives on my linux computer (and windows too i think), where it copies the file to the target device and then deletes the original copy.
I agree that the judge was well informed, or so it seemed. I'm still confused how Mr. Mendel can see a CD with a file on it, as different than a file on a harddrive in the cloud. They seem the same to me, a