Apr 2 2013
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.