Wednesday, April 3, 2013
First Sale In The Digital Age
Do you think you just bought an e-book from amazon or an MP3 from iTunes? Only if you redefine your definition of "bought".
In a decision concerning Capitol Records v. ReDigi, a judge has again confirmed what tech savvy people have been trying to get across for years: what you get when you purchase something digitally is not what you get if you purchase the same thing physically.
Richard J. Sullivan declared that reselling digital goods is illegal without the permission of the copyright holder. His argument hinges around the act of copying, focusing on how a physical object with a song on it can be transferred unaltered, while a digital file must be copied to be moved. He ignores the fact that you can rip the song before giving away the physical medium, or that even playing a song on a computer requires copying it into RAM, which by his standard would also be illegal. The argument is strictly about physical permanence vs. digital ephemeralness. The case is particularly about MP3s, but the reasoning makes it broadly applicable to anything digital.
This will of course be appealed (this was only a district court ruling, so it will be a while before the appeals process ends) but in the meantime, it sets a very dangerous precedent for electronic goods. Many people 'buying' things in digital form assume that the word 'buy' means the same thing it always has with physical goods, including permanent possession and first sale rights, but that is not the way it is shaping up in the legal system. Most never notice the difference, because businesses are extremely careful to hide the distinction, lest people start objecting. Ask a customer of Apple about their music and they will assume that it works the same as buying a CD, but ask former customers of MSN music and they will warn you about how everything they had payed for disappeared one day, with no recourse.
We must not allow this to become the new norm. What you have bought should be yours to do with as you please, with only the minor and logical restrictions we have come to expect. "Don't buy a CD and use it to make hundreds of copies and sell them at a personal profit" is a fair restriction. "Don't give away the song to anyone else, allow them to listen to the song with or without you present, or play the song in such a way that a person might listen to the song by accident" is not. "If we ever turn off our servers for confirming who you are, you lose everything you have every bought from us with no compensation or recourse" is not. We should own what we pay for. That what we bought is made of bits instead of paper or plastic should not change that.
Correction: It has been pointed out that Apple now uses a watermarking scheme, rather than server-based DRM, for its music. You won't lose access to your purchases if Apple goes out of business. The songs have your identity encoded in the metadata, so if you give the songs away, Apple or the music label can still say that they sold it to you and not X, so you are in trouble. While this is slightly more acceptable in that you don't lose your paid content if they stop paying for servers, the lack of transfer rights is still worrying, and the main point of this post.
Posted a few days late to avoid April Fools.