First Sale & Digital Music Files

The New York Times reports on ReDigi, which operates a service for people to buy and sell “used” digital music files. Section 109 of the Copyright Act protects a right of first sale: if you are the owner of a lawful copy of a work (e.g. a book or a CD) you can sell that copy to somebody else once you are done with it. Content providers don’t like section 109 because secondhand markets cut into their sales. Suppliers of works in digital form deny that section 109 even applies to their works because, they say, their customers are not owners of anything, merely subscribers or licensees. And, as the RIAA’s response to ReDigi shows, digital suppliers contend that because transferring a digital file to somebody else’s computer requires making an unauthorized copy of it, such a transfer cannot be accomplished without copyright infringement. Protecting first sale in the digital world requires rejecting this argument and recognizing that the only real interest that copyright owners have is in making sure a copy of the file is not retained by the person who transferred it. ReDigi says it has designed a system to ensure that no copy of the transferred file remains behind. But content providers need not rely on ReDigi’s assurances. They can develop technological measures to protect against multiple copies existing after a transfer. If a court tomorrow deems the transfer of a digital file a lawful first sale (and the copying involved in making the transfer incidentally lawful), content providers will do just that. In the near future, however, the question of whether it is lawful to transfer a digital file might have little importance. Works are increasingly delivered to customers via streaming–in which there is no file obtained and therefore no file to transfer.

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