The law and capitalism continue to determine reality for us as a judge determined that the only way to sell a “used” MP3 is to sell the hard drive that stores it. The issue came up with a company named ReDigi that wished to sell MP3s from and for those who had already paid for them and downloaded them unto a device. Their process would erase the original MP3 from the device and ensure that it was in fact purchased. Naturally enough, Capitol Records sued ReDigi for copyright infringement, and won. Their complaint said that “ReDigi makes and assists its users in making systematic, repeated and unauthorized reproductions and distributions of Plaintiffs copyrighted sound recordings.” The judge did not buy the argument that MP3 sellers were selling original copies of their Mp3s, per first sale doctrine, but that they were each time making a new copy of the MP3. He said:

The novel question presented in this action is whether a digital music file, lawfully made and purchased, may be resold by its owner through ReDigi under the first sale doctrine. The Court determines that it cannot.

…the Court concludes that ReDigi’s service infringes Capitol’s reproduction rights under any description of the technology. ReDigi stresses that it “migrates” a file from a user’s computer to its Cloud Locker, so that the same file is transferred to the ReDigi server and no copying occurs. However, even if that were the case, the fact that a file has moved from one material object – the user’s computer – to another – the ReDigi server – means that a reproduction has occurred. Similarly, when a ReDigi user downloads a new purchase from the ReDigi website to her computer, yet another reproduction is created. It is beside the point that the original phonorecord no longer exists. It matters only that a new phonorecord has been created.

  

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Jason Schultz, a friend of the NPR writer who reported on this case, says that he was disappointed that the judge interpreted the word “phonorecord” in this sense in this case. “When you don’t print a book on pulp anymore, but you download it to a flash memory chip that is in a Kindle, well the material object is there, but have you actually fixed the book in it?” wonders Shultz. “One could argue no. No digital goods are fixed anymore in any real way, not in the same way as when we print a book or press a record or make a movie reel. These words just don’t map anymore.”   Since the judge defined phonorecord as the physical bits on a hard drive, and relegated that only that could be resold, Schultz thinks this has far-reaching implications for the market. “There is a lot of value both economic and social that we get from having secondary markets… places like eBay, Amazon, used book stores, libraries are secondary markets where we get to go and borrow books, music, and movies,” Schultz says. “All these things depend on the first sale doctrine. This case potentially kills them all off for the digital world.” ReDigi, meanwhile, intends to appeal the judge’s ruling. What it means for the rest of us as that as usual courts and big business will determine our most interesting philosophical question such as “does a thing that changes have identity?” and “if you reproduce a thing is the reproduction the same or different than the original?” and “who the hell really owns this MP3 I just bought?”