09 May 2013

Federal Judge Rules "Used" eBooks Cannot Be Sold

Tuesday the Christian Science Monitor reported that a Federal Judge has ruled that digital content is a copyright holder's "original work". The legal nuance came to light with an online company ReDigi who sells "used" MP3 files. According to ReDigi, they have developed software that can track if a digital file has been purchased through an online retailer. The company provides a peer-to-peer platform to sell that file, much like eBay provides. ReDigi then checks the seller's computer to make sure the file is no longer there and Bob's your uncle. The theory is that the file is sold as one would resell a used print copy of a book or used CD. ReDigi was sued by Capitol Records over copyright infringement and  Federal Court Judge Richard Sullivan ruled this practice does violate the rights of works produced by Capitol Records.

So what's the big deal? Consumers have a right to believe something they purchased is their property to dispose of as they wish. Copyright holders have a right to expect to be fairly compensated for their works. The two positions are diametrically opposed because a copyright holder gets the shaft when a "used" digital copy of their work is sold and there is no compensation for their work. The consumer reaps the benefits of reducing their cost of digital media by resale while still experiencing a creative work. So where is the parity to be found?

It's certainly not within ReDigi's promise that their software is 100% accurate determining if a file is "used" and they wouldn't just copy digital files for resale. As the representative of copyright holders, there is no easy way to verify that ReDigi is the paragon of virtue they present themselves to be. For all anyone knows, ReDigi or any other company following the same model, won't simply rip a file and certify that copy as "used". There is no evidence that ReDigi holds such shoddy business practices, but how can copyright holders verify such a thing isn't going on? In God we trust and all others pay cash as the old saying goes...

The second issue is why wouldn't ReDigi and like platforms simply pay a percentage to the copyright holder?  The argument is in the first-sale doctrine of copyright law which basically says once a copywirtten work is sold, the copyright holder's interest is exhausted in that product. The copyright holder has the right to produce their work in any format of their choosing. That's why selling a used book is legal and making a copy of a book and selling it is not. The thought is that a copyright holder is compensated enough by that initial sale and that's enough. Platforms like ReDigi could of course compensate copyright holders, but that would cut into their profits of selling something they did not create.

The true shame of all of this talk of used digital copies and first-sale doctrines is that we as a society do not value the creative process. Forget for a moment the legalities concerned with copyright law and the ReDigi issue. As a producer in the creative marketplace, we supply media to fulfill consumers' demand for entertainment. Along the way those involved in the creative process are told it's ok to give your time, effort, and energy away for free because we can always create more content seemingly out of thin air. You can always come up with some alternative income stream to support yourself because in a digital world we demand cheap/free media. Does that really seem right to you? Would you ask someone to come over and paint your house for the payment of a nice comment on Facebook?

The true resolution to the ReDigi issue is for consumers of media to simply opt out of the "because it's digital I have an inherent right to consume someone's work for free" mentality. Support your favorite authors and musicians. Buy a used copy of a book and if you really like it, send a dollar to the author. If you dig an album you heard on Spotify (which does pay rights holders by the way) pay to see a live show. If we as a society do not take small steps to financially support the creative process, there will come a point that no one will wish to be creative. What a dull drab world that would be.

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