Can there be a digital “used record store”?
This ars technica article talks about a start-up that has developed a technology that removes a music file and its digital rights from one computer or device and transfers it to another. The problem is, that in moving the file from the seller’s computer to its server, and thence to the buyer’s computers involving copying the file, something that Capitol records says is a criminal copyright violation liable for up to 150K$ in fines per file.
ReDigi – the company – claims an exemption under the “essential step” clause in the copyright law that allows copying a computer program if it is an “essential step” in the utilization of the program.
(a) Making of additional copy or adaptation by owner of copy. Notwithstanding the provisions of section 106 [ 17 USC 106 ], it is not an infringement for the owner of a copy of a computer program to make or authorize the making of another copy or adaptation of that computer program provided:
(1) that such a new copy or adaptation is created as an essential step in the utilization of the computer program in conjunction with a machine and that it is used in no other manner.
Capitol records claims that the entire analogy to a ‘used record store” is inapplicable because used record stores do not make copies of records, but resell the physical object. Since a digital music file is not a physical object, but a license to reproduce specific intellectual property – that is not transferable – they say ReDigi’s enterprise is based on illegal theft of their intellectual property. They say the “essential step” defense is also not applicable because a music file is not a “computer program” – it is simply data with no executable code. This is not entirely true because of the digital rights management code embedded in the music file that is executable code, which of course Capitol says is a “container” protecting the file and not an actual part of the file itself.
On the face of it it appears ReDigi has a tough road ahead, but a lot will depend on the extent to which the courts buys into the “digital used record store” analogy and whether a music file is considered a “computer program” or whether adding digital rights management changes that. There has already been push-back in the courts to the idea that you don’t actually “own” a music file, but have simply purchased a non-transferable licence to use the file. Similar arguments regarding computer programs have already failed to sway courts who have allowed the resale of computer software. That has involved the transfer of the physical media the program is distributed on – making it a direct equivalent to the “used record store” and not an “analogy”.