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Tuesday News: NY federal judge rules first sale applies only to...


But the software scheme was designed so that ReDigi could argue that there was only one legitimate copy of a digital song per user. This argument fell on deaf ears at the lower court level. (I don’t even recall there were oral arguments. I think this was submitted on written briefs alone). There are four takeaways in this case.

1) Copying is physics.

“This understanding is, of course, confirmed by the laws of physics. It is simply impossible that the same “material object” can be transferred over the Internet. Thus, logically, the court in London-Sire noted that the Internet transfer of a file results in a material object being “created elsewhere at its finish.” Id. at 173…. Simply put, it is the creation of a new material object and not an additional material object that defines the reproduction right.

2) The fact that there are multiple reproductions that happen regularly on a computer is a red herring.

ReDigi also argues that the Court’s conclusion would lead to “irrational” outcomes, as it would render illegal any movement of copyrighted files on a hard drive, including relocating files between directories and defragmenting. However, this argument is nothing more than a red herring. As Capitol has conceded, such reproduction is almost certainly protected under other doctrines or defenses, and is not relevant to the instant motion.

3) Phonorecord. Phonorecord. Phonorecord.

Put another way, the first sale defense is limited to material items, like records, that the copyright owner put into the stream of commerce. … The statute plainly applies to the lawful owner’s “particular” phonorecord, a phonorecord that by definition cannot be uploaded and sold on ReDigi’s website.

4) Even though I said before that the first sale defense applies only to material items (and used material objects to define a newly created digital phonorecord), I’m not actually saying it. Thus contradicting myself. A lot.

Finally, ReDigi feebly argues that the Court’s reading of Section 109(a) would in effect exclude digital works from the meaning of the statute. (ReDigi Mem. 21.) That is not the case. Section 109(a) still protects a lawful owner’s sale of her “particular” phonorecord, be it a computer hard disk, iPod, or other memory device onto which the file was originally downloaded. 

If you are saying Wat? after reading this, please know you are not alone.

Jane Litte is the founder of Dear Author, a lawyer, and a lover of pencil skirts. She self publishes NA and contemporaries (and publishes with Berkley and Montlake) and spends her downtime reading romances and writing about them. Her TBR pile is much larger than the one shown in the picture and not as pretty. You can reach Jane by email at jane @ dearauthor dot com


  1. Liz H.
    Apr 02, 2013 @ 04:55:58

    The AZ article got my hopes up, but it is not protection of your e-reader records (assuming that Amazon/B&N/whoever keeps records of everything loaded onto your reading device, whether purchased or sideloaded). If I’m understanding correctly, Arizona is interpreting its current library records privacy laws to only include library records of physical books (and possibly other physical media?) but not to include records of ebooks borrowed from the library. (And therefore streamed/borrowed audiobooks, music, or movies are not covered either?) This new law would include borrowed ebooks in the protected records.
    Am I the only one who assumed that library records were library records, and didn’t think it mattered what you borrowed? I’m curious now whether the laws specifically define the types of media borrowed, or whether this is just an interpretation and a cover-all-your-bases move. But, I’m also too lazy to look up every state…

  2. AH
    Apr 02, 2013 @ 06:23:43

    The Arizona law is interesting. I find it disconcerting that ebook vendors can have so much information about our reading habits. Kobo has a thing called Reading life where they give badges depending on your reading habits. At first, it was kind of neat until I realized that they were collecting data . I now keep my wifi turned off – it’s none of their business what and when I read. What is frustrating is that you can’t opt out of these things.

  3. DB Cooper
    Apr 02, 2013 @ 06:52:42

    @Liz H.: I’m curious as to what you mean “Library records are library records” . What do you interpret as a library record?

    For me, it’s the great curiosity (irony) that I assumed my borrowing record is private (because who would really care about that except for the library), and that when I think of “library records” I think of a place I go to access public records on file–that anyone can look at. Hah. :D

    It’s also the great hope of mine that Arizona would have interpreted the law in such a way that was beneficial to the privacy of the individual (at least, as defined by my own opinion). Ahh well.

  4. DS
    Apr 02, 2013 @ 07:39:35

    Librarians have fought valiantly in many states for the privacy of their borrowers against egregious over reaching by the government (including– or maybe mostly by– the Federal Gov). We should all thank a librarian.

    ETA: I speaking of the US of course although I would not be adverse to thanking librarians in other countries either.

  5. Liz H.
    Apr 02, 2013 @ 07:41:07

    @DB Cooper: Welcome to the confusion, lol. Non-specific phrasing creates all sorts of interesting confusion.
    I meant that I assumed that there was no difference between records of physical book/material borrowing or records of ebook/digital material borrowing. I.e. All records held by the library about your behavior are considered the same, and are protected under such laws. (One would hope.)

    My understanding of library records are that they have always been an issue of concern for personal privacy. They are used in criminal investigations, but access by police and law enforcement has a history of abuse, for example, during McCarthy-ism in the 1950s, and post-9/11 when the FBI had the power to investigate anyone who looked up key words such as terrorism, bomb, etc.

    @AH- I keep the wifi on my Nook off too. And yes, there should be an opt-out! I also really hate that they won’t reveal exactly what they’re collecting.

  6. Nialla
    Apr 02, 2013 @ 09:31:53

    I think the reason for specifying eBooks in keeping library records private is because eBooks are not generally “owned” by the library. If you check out a physical book, DVD, audiobook, etc., the record of that transaction is with the library.

    For library eBooks, they’re often run through a third party system, such as OverDrive or 3M. That could provide an opening for a legal end-run around the library’s privacy policy by going directly to the vendor, who might not be as picky about a court order.

  7. hapax
    Apr 02, 2013 @ 09:50:33

    Currently, individual library records of most ebooks checked out through third-party systems such as Overdrive used by libraries *are* kept private; the third-party vendor retains only aggregate data.

    The exception is for books that are borrowed for Kindles. Amazon *insists* that such loans are made through the Amazon website, on the borrower’s Kindle account. I always warn patrons borrowing those books of the privacy breach, but I’ve never had any of them seem concerned.

    I wonder if this law will just mean that Amazon refuses to loan Kindle books in Arizona.

  8. Liz H.
    Apr 02, 2013 @ 10:21:30

    @Nialla and @hapax- Thanks! That clears things up a lot. Really interesting to know. Do either of you know what the laws are like in other states?

    And I second @DS’s thanks to librarians. You guys are pretty amazing.

  9. Carolyn Jewel
    Apr 05, 2013 @ 09:15:51

    I read the redigi ruling twice — some parts several times. My day job is in tech. I deal directly and on a daily basis with what this judge was setting out. So, what I read him saying, particularly with the physics remark, was this: a digital song is fixed in media just like a phonorecord. (I will get to why that’s a bit wrong) The fixed media is the physical location on the server hard drive. What cannot be in two places at once is the hard drive on which the song resides. And this is true. That physical location(s) on that hard drive cannot exist in NY and California at the same time. (Ohh, but….!!!) He recognized that the song itself could reside on multiple hard drives on completely different servers and held that the copyright holder had the right to the process that would move the original file to another server but that any reduplication of that file from that second server to any other server was an unauthorized copy (excluding any copying rights that purchaser might have.)

    It’s a little tortured and it misstates what modern servers do, however, his statement was that the laws of physics applied to physical hard drives, not the bits and bytes that comprise the media — wherever that media is. In other words, the copyright is tied to the fixed media, which is not the series of 1s and 0s that would play the song anywhere, but in the drive.

    The problem is that a modern server is not like your desktop or laptop or iPad or what have you. A server doesn’t have 1 harddrive. A server has 20 or 100s or drives all connected in a RAID array. Depending on the RAID configuration, the data is duplicated/mirrored across portions of the drives. It would be possible for one of the drives to fail yet the RAID array continues to function without any data loss. That drive could be taken out, replaced, and be populated with the data across all the drives comprising the array.

    That means that the judge is wrong. The original server in the hands of the copyright owner/licencee does not necessarily have one physical location for the data. Those bits and bytes exist on multiple drives– though he would still be correct that each of those physical bits on the drives can exist only on that bit. You’d have to get around that by defining the fixed media as a RAID array … but I don’t know how you’d then distinguish the properties of a RAID array from, say a home network of linked devices. Or space on Amazon S3.

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