Selling Used MP3s Found Legal In America 281
bs0d3 writes "After some litigation; ReDigi, a site where people can sell used MP3s has been found legal in America. One of the key decisions the judge had to make was whether MP3's were material objects or not. 'Material objects' are not subject to the distribution right stipulated in "17 USC 106(3)" which protects the sale of intellectual property copies. If MP3's are material objects than the resale of them is guaranteed legal under the first sale' exception in 17 USC 109. Capitol Records tried to argue that they were material objects under one law and not under the other. Today the judge has sided with the first-sale doctrine, which means he is seeing these as material objects."
I'm fine with this but... (Score:2)
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The same thing that kept you from making copies of all your physical media before reselling it. That little voice in your head.
It's true. The little voice in my head keeps me far too busy killing the demons that look like people to bother making illegal copies of my media, physical or digital.
Re:I'm fine with this but... (Score:5, Informative)
Most of piracy is a problem in how companies treat customers, availability, restrictions (the pirated version has more features, is more usable) and cost.
If books started to cost more money, people would start xeroxing them to each other. Its how it goes. This is all a reaction to the RIAA thinking they can dictate terms to the masses and rake in money. You have to respect your customer and provide value.
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I also agree for the most part about convenience but Amazon sells high quality mp3s for $.99 and they're DRM free. You can hardly call that too expensive or inconvenient.
Re:I'm fine with this but... (Score:4, Informative)
You're free to copy a pirated version back into iTunes, but iTunes won't recognize it officially and you won't be able to download the song elsewhere from iTunes servers. So it is, in some ways, an inferior product. And its illegal, and once you make the cost and the penalties fair, people will understand. There will always be a few who pirate, but that isn't the issue here; THOSE PEOPLE ARE ALREADY PIRATING MUSIC, and will continue to do so. Furthermore, those people are not lost sales, but that is an argument for another day.
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The whole "inferior versus perfect" copy thing is a bit of straw man argument. You can only charge extra (read: more than free) if you provide some extra value in your product. Previously, the only added value they provided was a bit of extra quality in the recording. But 99% of the time the inferior copy served the needs of the user, so people copied things whenever they thought price was too high or didn't have the money.
Now that lossless copies are free, the sold products have lost their added value
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It's easier to pirate than it is to download paid copies.
If it was the other way around piracy would drop off like a brick.
Re:I'm fine with this but... (Score:4, Informative)
See all of Valve's latest experiments, where for instance everybody told them "you cant' sell in Russia, its full of pirates." When they started doing proper, good localizations to Russian, and started releasing games there at the same time as the States, piracy completely fell off the map. They're still making 3x as much money in Russia as any analyst expects them to.
Or the steam sales, where offering a product at a fair price to market perception caused UNBELIEVABLE number of purchases. Valve's minds are literally blown by how much more games sell when you slash the price in half. I mean, a sale traditionally increases how much people buy, but we're talking over a hundred-fold more. Thats why you've seen sale after sale after sale on Steam; by charging LESS, they actually make MORE.
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Not easier, cheaper.
How the heck is pirating easier than opening iTunes, or searching in Amazon, and searching for the song you want, and clicking on the buy button.
The lengths people go to to justify themselves!
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What's stopping me from selling numerous copies of my MP3s and retaining my original copies?
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What's stopping me from selling numerous copies of my MP3s and retaining my original copies?
The increasing odds with each transaction that you will be observed conducting illegal activity.
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Copyright law, if your doing that on a large scale it's a criminal offence. The point is were not to assume everybody is a criminal by default.
Right of First Sale (Score:4, Insightful)
This decision is going to be challenged, directly or via changing of law, because it's a huge loss for the RIAA. I suspect it will be an important legal precedent, if it is not overturned.
Article Bogus (Score:5, Informative)
Ha-buh-wha? (Score:5, Funny)
After some litigation; ReDigi, a site where people can sell used MP3's has been found legal in America.
Punctuation it: can go, pretty; much? Anywhere,
Material object? (Score:4, Funny)
What is the mass of an MP3?
African or European? (Score:5, Funny)
What is the mass of an MP3?
An African or European MP3?
Re:Material object? (Score:5, Funny)
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Just like a book, it depends on the medium on which it's written. If it's on a hard drive, I'd say it's the mass of all the sectors containing the bits comprising the MP3. I'm sure you'll object that you could erase it, or write something else there and it would weigh about the same. Very true. Likewise, you could painstakingly pick the ink out of the paper fibers, stick them to different paper fibers, and make an entirely different book that would weigh about the same.
In short, it has a mass even if it
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Simple, it's roughly e*x*s, where e=the mass of an electron, s=the size of the file in bits, and x is the average number of electrons needed to store each bit on the chosen storage medium. In this case, mass may appear to vary based on the density of the chosen storage medium.
Alternatively, mass approaches infinity as the file is moved across fiber optic links at the speed of light. WARNING: Attempting to duplicate a file in this state may create a rift in the profit-time continuum.
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What is the mass of an MP3?
How do you differentiate between a file with random bits in it and an MP3 file?
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You try loading it into your media player of choice and see what it sounds like.
If it sounds like static, it's random bits. If it sounds like music, it's an MP3.
If it sounds like godawful screeching noises, it's also an MP3 (of popular music).
Re:Material object? (Score:5, Interesting)
Well, as it is information, it certainly has entropy; let's assume that the best possible encoding of an mp3 is the mp3 itself (not a terrible assumption, since a mp3 is a compressed file, and as such highly entropic). By Landauer's principle, to write a bit irreversibly one spends kTlog(2) Joules. This corresponds to an increase of m = E/c^2 = kTlog(2)/c^2 kg per bit. If one assumes a 8 MB mp3 (One more time @ 256 VBR) at room temperature (300 K), that's 2.55E-31 kg for you.
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If you were being serious, "Material" at this point has its own legal definition, and they do not just mean "physical".
What is that definition? The only one I'm aware of is "Of, relating to, or composed of matter."
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No, I'm not a lawyer. Yes, I know there is a lot in law I am not aware of. That's why I asked. What is the actual definition of "material object" in law? Where in the law is it defined?
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From Black's Law Dictionary [blackslawdictionary.org]:
Important; more or less necessary; having influence or effect; going to t[h]e merits; having to do with matter, as distinguished from form. An allegation is said to be material when it forms a substantive part of the case presented by the pleading. Evidence offered in a cause, or a question propounded, is material when it is relevant and goes to the substantial matters in dispute, or has a legitimate and effective influence or bearing on the decision of the case.
Related Legal Ter
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What if I write down the mp3's bits (maybe in hexadecimal...to save time) on college-ruled notebook using a medium Bic ballpoint pen? Then how much does it weigh? And can I sell that?
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If we take a small leap of thought and apply Landauer's principle [wikipedia.org], assuming an initially random storage medium that happened to be the perfect inverse of the data you're storing (worst possible case, you have to flip every bit): 1 MB (8×2^20==2^23 bits, 1 MiB for pedants) would take 2.393×10^-14 joules at room temperature, 25 C/298.15 K/77 F(SATP/standard ambient [wikipedia.org]). Converting that with E=mC^2, you get 2.663×10^-28 grams per MB. If we assume a typical mp3 is about 5 MB, it would mass 1.332
Not true... (Score:5, Informative)
The judge simply denied a motion for a preliminary injunction against the defendant which means the case will go to trial.
Actual source of information: http://arstechnica.com/tech-policy/news/2012/02/judge-denies-record-labels-request-to-shutter-used-mp3-store.ars
In short selling of used mp3's hasn't been answered yet (the summary is wrong).
Huzzah! (Score:2)
Fake Story (Score:2)
Not True (Score:5, Informative)
Re:Not True (Score:5, Informative)
The title of this article is wrong. Everything I read shows no decision has been made yet. The Judge ruled that there is no need for a prelimenary injunction.
I followed the link in the meaningless drivel that claims to be a submission. The link points to a blog full of meaningless drivel with another link. That link points to another blog full of meaningless drivel which contains a link to an Ars Technica article. And if you follow that link, you find that a submitter has quoted a clueless twat who copied an article from a clueless twat who read an Ars Technica article and didn't understand a word of it.
Quote from Ars Technica here http://arstechnica.com/tech-policy/news/2012/02/judge-denies-record-labels-request-to-shutter-used-mp3-store.ars [arstechnica.com] : "Sullivanâ(TM)s decision means that the case is still headed to trial, where Capitol will attempt to prove its allegations that ReDigi facilitates wanton copyright infringement and is not protected by the first-sale doctrine."
And a Dupe (Score:5, Informative)
Yeah, and informed account of that decision by the actual lawyer for ReDigi was
posted on slashdot [slashdot.org] just this morning.
What's really going on? (Score:4, Insightful)
Follow the links. (Score:3)
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Just a few hours ago Slashdot reported that a judge had refused an injunction against ReDigi, and now they are supposed to have won their case? I'd say there are two possibilities: One, that we have a judge who can run at speeds exceeding the speed of light, because that's the only way a case could have finished so quick. Or second, that the submitter is a clueless twat you didn't understand a word of what he is actually submitting. Since there is no link to any real information, I assume the latter.
Haven't you heard of a 'rocket docket'?
Judge only denied a motion for summary judgement. (Score:5, Informative)
No, selling used mp3s has not been found legal. If you trace the link's back to the original source you get this article at Ars:
**Judge denies record label's request to shutter "used" MP3 store**
http://arstechnica.com/tech-policy/news/2012/02/judge-denies-record-labels-request-to-shutter-used-mp3-store.ars [arstechnica.com]
The judge still thinks ReDigi's arguments are likely to fail and that Capitol Records will prevail. The only thing that is significant is that ReDigi's case isn't over yet at the motion stage.
Norm Abram is a pirate! (Score:2)
So if an MP3 is a material object and can thus be resold, what does this say about copying it?
In The New Yankee Workshop [wikipedia.org], host Norm Abram buys a piece of furniture and then brings it back to his shop. He then makes a very near exact replica of it and often donates or sells the replica. We have just concluded that an MP3 is a similar material object. What does this say about piracy? Is Norm a furniture pirate?
What does this say about software license agreements? Ignoring software patents, is it stil
So, if they aren't material objects, what then? (Score:3)
Why did the RIAA need them to be material objects under one law and not the other? What are the consequences if they are not considered 'material objects' under either law?
Supreme Court Will Smack that Down (Score:2)
Mind you, this has to get past the same Supreme Court that said Costco was Violating Rolex's trademark by importing watches from other (cheaper) markets for sale in the US. Right of First Sale is not their forte.
The "Source" link in the Summary is Bogus (Score:5, Informative)
There has been no definitive ruling by the courts in this litigation. The judge only denied Capitol Records request for a preliminary injunction against ReDigi to force them to cease operations while the litigation proceeds. That, most likely would have forced ReDigi out of business, which may well have been what the judge was thinking about. We won't have any real answers about this until after a trial and, presumably, the inevitable appeals.
More Info here [digitaltrends.com] and here [law360.com]
Sensationalist Headline (Score:5, Informative)
The linked story is from some fly-by-night news site that cites a Yahoo! news posting that totally misinterprets an ArsTechnica posting that actually analyzes the actual decision (which is hosted on Wired.) Somehow in this online news game of telephone, it went from the actual story, posted accurately earlier in the day by NewYorkCountryLawyer, that the judge denied the plaintiff's motion for an injunction to the sensationalist story that the judge had ruled in favor of the defendant and ruled that their business is legal. Denying the injunction means that ReDigi gets to keep doing business during the trial. That's it, nothing more. They could still lose at trial. The trial hasn't even started, let alone been decided in a way that would mean that reselling mp3s is legal.
In short, this is a misinformed dupe of the story posted by NewYorkCountryLawyer earlier in the day. Read and comment on that one because this is sensationalist garbage. Nothing to see here. Move along.
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Agreed.
This should have been story-modded "-1 Dupe" and "-1 Troll" and probably "-15 Irrational Wish Fulfillment".
Apparently, the illustrious Slashdot Story Pipeline works as well as the rest of the "editorial" system.
I find myself wishing someone had just posted a pointer to a (hypothetical) Florian Mueller blog-dropping about the case instead of this tripe.
Seriously. Please stop reading this story and read NYCL's submission [slashdot.org] instead. It has the virtue of being grounded in reality and based on fact.
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Please stop reading this story and read NYCL's submission [slashdot.org] instead. It has the virtue of being grounded in reality and based on fact.
Yeah, but reality can be so dreary some times.
Physical or Intellectual Property? (Score:3)
I am loving the irony. For decades these jerks made us buy vinyl, then 8-tracks, then cassettes, then DAT, then CDs (maybe even fancy gold ones) of the same songs each time a new format became available --and if the player ate my tape, I had to shell out another $8.50. They told us we were purchasing physical objects. Now they claim music is intellectual property and you can't resell it?
How long before music comes with a EULA?
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The last time I bought used MP3s.... (Score:2)
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For the same reason you cannot go buy The Davinci Code and start mass producing copies for your friends.
For all the insanity there may be in copyright / IP legislation, you have to go way out on a limb to argue for complete removal of copy protections on recently produced works.
Re:If selling is legal.. (Score:5, Insightful)
Completely wrong response. Following this judge's decision, you can indeed give them away, so long as you are only giving away the copies that you purchased.
Re:If selling is legal.. (Score:4, Interesting)
So if I own lots of MP3s, millions of them including multiple copies of popular songs-
Could I sell one to you, then a few minutes later buy it back as I sell you the next MP3 on your playlist?
I can see having any song available on demand from a music service for a small monthly fee becoming a viable business model, where previously only radio-style playlists (you don't get to pick every song) have been available free or cheaply.
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Umm, Spotify [spotify.com]?
Re:If selling is legal.. (Score:5, Informative)
So, there are 5 links in the summary. One is a previous slashdot story, one is ReDigi's homepage, two are just links to law texts, and the last one is, I guess, TFA. So I followed it, and found a shady ass blog post hosted on some random site on port 82. It had links though, mostly the same links as TFS, but it added what seemed like a source hosted on a Yahoo blog. Better, but still not really reliable, and the facts were starting to change. So I followed that blogs source, and got to Ars. OK, now something vaguely reliable. But the facts were a lot murkier, and it sounded a lot like the same story from two days ago, linked in TFS. Ars has two relevant, recent links. One is to Wired, so now it really starts to sound legit, except the Wired article is from February 2nd, and says "a ruling could come any day now". The other Ars link is to a pdf ruling. Finally, the truth will be revealed. Here is the text of the brief, in it's entirety:
RICHARD J. SULLIVAN, District Judge:
For the reasons stated on the record at today's conference, Plaintiffs motion for a preliminary injunction is HEREBY DENIED.
As directed by the Court at today's conference, IT IS HEREBY ORDERED THAT, by Monday, February 20, 2012 at 4:00 p.m., the parties shall submit a proposed case management plan and scheduling to my chambers at the following email address: sullivannysdchambers@nysd.uscourts.gov. A template for the order is available at http://www.nysd.uscourts.gov/cases/show.php?db=judge_info&id=347 [uscourts.gov]. SO ORDERED.
Dated: February 6, 2012 New York, New York
Isn't Internet news great?
Re:If selling is legal.. (Score:4, Funny)
Isn't Internet news great?
That's not why we invented in the first place silly. We invented it for porn. When you consider that, the Internet kicks ass and is the most wildly successful invention in mankind's history.
Re:If selling is legal.. (Score:5, Informative)
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Spotify pays royalties to the copyright holders for each song that's played. Parent's suggestion was that you could buy a song on e.g. iTunes for $1 and then "sell, wait for the song to play and buy it back" to each user without paying any royalties.
Re:If selling is legal.. (Score:5, Insightful)
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Re:If selling is legal.. (Score:5, Insightful)
You could. If you deleted all of your copies, and if only one person was able to download them.
The main reason for this ruling was that it obeyed the first law of economic thermodynamics - products were neither created nor destroyed, only transferred.
Re:If selling is legal.. (Score:4, Interesting)
I makes me wonder how this would apply to other digital media we buy.
* I'd think, say with DLC, the producer of the material wouldn't be obligated to assist in a content transfer so DRM keeps them safe for now. But are we now otherwise allowed to transfer that material to someone else? If so, do anti-circumvention exemptions now apply to the new owner?
* [requisite ianal, etc]
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<ianal>
You are correct, the producer wouldn't have any obligation to make transfers easy or even possible. And, while this ruling does not in any way rule on other digital products like DLC, it does provide some amount of precedence another judge may wish to use.
Most likely, DLC would be defined as an addition to another physical product - the game proper. So you would probably only be able to transfer DLC if you transferred ownership of the rest of the game as well. At least, that's the ruling I woul
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The problems will come with the violation digital goods make of the second law - devaluation through use.
We've already seen examples of publishers changing license agreements with libraries, forcing them to only loan a book 20 some odd times before required deletion. If a publisher only sells digital goods with DRM, then you must abide by their terms because circumvention of DRM is still illegal.
For example, you buy a book (electronic) from Amazon or Barnes and Noble and it's linked to your account/device.
Re:If selling is legal.. (Score:4, Insightful)
You can. You just have to use some sort of atomic transaction scheme like ReDigi does to ensure that no more than one copy is accessible at a time.
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My concern would be as well is that someone decides to sell their low quality torrented music and you still have to worry about it being a quality version. Even if the 30 second preview is from the actual file it doesn't tell me if it cuts off too early.
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Depends on what MP3 files they accept. I believe some online stores watermark theirs with a specific ID for each user, so they could easily detect repeated sales of the same file.
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Digital Signature
A digital signature or digital signature scheme is a mathematical scheme for demonstrating the authenticity of a digital message or document. A valid digital signature gives a recipient reason to believe that the message was created by a known sender, and that it was not altered in transit. Digital signatures are commonly used for software distribution, financial transactions, and in other cases where it is important to detect forgery or tampering. (...)
Re:If selling is legal.. (Score:4, Insightful)
I suppose that would be the difference between you doing something illegal and ReDigi (or another service) operating an illegal service.
Presumably what mattered here is that ReDigi did their due diligence in the process of transferring an mp3 from one person to another, destroying the provided original. If you copied it before that, then you did something illegal, not them. They'd have done what they could to avoid facilitating such a scam.
not a lawyer.
Re:If selling is legal.. (Score:5, Insightful)
I agree but if I keep backups of all my music they're not going to be able to delete copies of music on a USB drive not even connected to the computer
I can buy a CD, create an image with EAC, then take the CD to any 2nd hand store and sell it to them, no question asked. Nobody makes you sign a document where you state that you have destroyed any backups you might have made. Heck, nobody even asks. Is it legal? Probably not. But that's not the point. Just because I can do this, I am not prohibited from selling said CD. So "possibly having backup copies left" is NOT an argument that can be used prohibiting someone from selling music files they bought from a legal source, e.g. iTMS. I can use my scanner to scan a BOOK. So with that reasoning, you can't sell books anymore because you might have kept a copy.
My concern would be as well is that someone decides to sell their low quality torrented music and you still have to worry about it being a quality version. Even if the 30 second preview is from the actual file it doesn't tell me if it cuts off too early.
Yes, that would be a problem. You never know if it might have been taken from the 2010 remastered edition where MC Master DJ Shitforface decided to master it really "hot" i.e. compressed to death and brickwalled. Perhaps these services should give you the option to listen to the first 5 seconds and the last 5 second, as well as supply all relevant information (including DR analysis, etc. which can all be automated).
Re:If selling is legal.. (Score:5, Funny)
You can't, remember copyright? I have to give a "right to copy" a permission or a license to distribute my digital goods. Software, recordings, photos etc. are all covered here and copyright makes any second-hand market or distribution illegal by default unless authorized by the copyright holders.
I heard there was a recent court ruling that found otherwise, saying that at least in the case of mp3s that they constitute 'material objects' and are thus subject to the First Sale Doctrine exception to the distribution right.
I can't remember where I heard this though.
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They're countering stupidity with insanity. Eventually, all words will become noise, and the issue will go away.
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IANAL of course, but I believe this ruling would permit exactly that, as long as the files were promptly deleted from your system immediately after they're transferred to someone else.
Re:If selling is legal.. (Score:5, Insightful)
ahh, but could one not argue that at one point, however short, existed two copies?
So RAID 1 is illegal.
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ahh, but could one not argue that at one point, however short, existed two copies?
So RAID 1 is illegal.
How about your Web browser's cache? Lions and tigers and bears, oh my!
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Have you ever seen the headache that ensues when your raid controllers realize that only one of your drives has a file? Eee gads.
Let me tell you, RAID 1 just means that you are twice as likely to be fucked and files cost 2x as much to store.
Re:If selling is legal.. (Score:5, Informative)
If I recall correctly, the law distinguishes between those copies that are only a technical requirement of storing or playing the work, like RAID1 or copying it to RAM and the sound card buffer, and those that functionally create two copies. Perhaps you can with specialized software argue that this temporary duplication is an technical implementation detail in moving a file, but I doubt your average P2P software would apply. I would think you must show that the software will transfer the bits only once to one person and delete them upon confirmation, which is not the typical mode of operation.
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Not if you zero out the file as you're copying it, I suppose. Well, there will still be multiple copies of a chunk of the file (at least in memory and in transit), but I assume those are fair use.
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AFAIK there is no completely watertight transaction protocol (?)
Couldn't it always be claimed that a technical error is responsible for resulting in two copies?
If the sender then finds the file still on their system, perhaps it could be argued they should remove rather than play the file. But could they not just as well assume that the transfer must have been unsuccessful (otherwise the file should be gone)? And so reasonably assuming they are in the in possession of the only copy, they should be able to pl
Re:If selling is legal.. (Score:5, Informative)
What you're missing here is that to "sell" the MP3, it is necessary that you give the MP3 to the other party. This is a "move" not a "copy", meaning, you must destroy your current copy. Yes, under the "material object" logic, you could "give" it away, as in "sell it for zero", but you give up any rights to it yourself.
With P2P, your copy stays on the machine when another downloads it from you. You now have an illegal copy (assuming you GAVE it to the first downloader).
Re:If selling is legal.. (Score:4, Insightful)
What if half my 320kbps mp3 to two 160kbps mp3s? do I have two legal copies?
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Now, imagine that the "Group" was most of the world. Your system would purchase several thousand copies of a given song, then no more, ever.
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Ownership and proof of ownership are two separate things. You don't need a receipt to own something.
I agree that "giving" an mp3 in a material sense is sort of silly. Digital media is a new thing. So far, we've been arguing over which old metaphor it most closely resembles and basing our rules around that.
Re:If selling is legal.. (Score:5, Interesting)
this is just a case of them trying to have their cake and eat it too, when they'd really much rather HAVE their cake than EAT it, if given the choice. So the judge had to make a call, and it was called EAT it. So now they find themselves in pretty much the worst possible scenario. By their own involvements they've gotten MP3's judged as material objects.
And now have an almost impossible to police or defend position of having to identify and prove that you don't still have a copy after selling it. Serves them right for trying to double-dip. They would have been much better off to have claimed it was exclusively not a physical object - at least then they'd have more applicable laws to erm... abuse.
Re:If selling is legal.. (Score:4, Interesting)
Possession is nine tenths of the Law. BTW, according to several people working as agents of the Performing Rights Society and the British Phonographic Institute, a receipt is not proof of ownership - the only proof they will accept is an original inlay (specifically the side with the barcode) - even if you don't have current possession of the media itself (I mean, how many DJs do you know carries original copies of commercial albums on CDDA? I know of precisely zero).
Disclaimer: my brother is a club DJ, I used to help out occasionally and met lots of other DJs who did the same: carried ready-to-go remixes and pissbreak tracks on a dozen or so CDR or a firewire drive, and several thousand CD back inlays in a couple lever arch files. With the diversity of floor requests, you couldn't possibly carry even a half decent collection of heavy rock or dubstep or whatever on CDDA, you'd need a frickin' truck! (200 CD albums in cases weighs over 28lb, plus the weight of the trunk). Hence, a 500GB drive packed with popular floorfillers (with the requisite accompanying two or three pounds of paper inlays) was an essential addition to his car load.
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Re:For crying out loud, think. (Score:4, Funny)
I parsed that last bit as "then == ale", and realized it was time to go home. Then does in face equal ale.
Re:For crying out loud, think. (Score:4, Funny)
I parsed that last bit as "then == ale", and realized it was time to go home. Then does in face equal ale.
Wherever you are, it's well past time to go home. ;)
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"=" != "=="
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ReDigi apparently uses software that is supposed to transmit the file to the buyer while simultaneously deleting the copy on the seller's system.
No, there's no guarantee that you won't have other copies, but you run into the same problem (effectively) with selling a used CD. I can buy a new CD, rip it (say, in FLAC or other lossless format) and sell the physical copy while keeping the digital copy.
Re:This makes no sense (Score:5, Insightful)
True, but then if I sell my copy of a book there's no guarantee I haven't photocopied it and kept the copy either.
Bear in mind that it's not so much an argument over whether MP3s should be treated as material objects or not. It's that the record companies want them treated as material objects for purposes of one section of copyright law (Section 106 covering distribution of copies) but treated as not being material objects for purposes of a different section (Section 109 covering sale of copies). The counterargument is that the record company can't have it both ways, and the judge agreed that if the record companies want it to be considered a copy then defendants are entitled to treat it as a copy even when the record companies would rather they didn't.
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When you sell a second hand album you are giving away a unique physical item. Selling a digital item provides no guarantee that you have "given" the original item, or that you don't have a million copies of it, or that you had an original item in the first place.
Selling a physical item, say a used CD, provides no guarantee that you have "given" the original item, or that you don't have a million copies of it, or that you had a[ legally acquired] original item in the first place.
So... what's your point?
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Selling a digital item provides no guarantee that you have "given" the original item, or that you don't have a million copies of it, or that you had an original item in the first place.
Yeah, you can't steal a music CD, make a million copies of it, and sell those. That can only happen in the real world.