Capitol Records, LLC v. ReDigi, Inc.: No Re-Selling Digital Material

While this case will probably never be considered a landmark case in copyright law, it typifies, for me, the kinds of new issues that arise in IP law as the world changes. It seems that an online store (“ReDigi”) attempted to sell used digital material (e.g., iTunes purchases that the purchaser no longer wanted to hear or see). A judge in the Southern District of New York ruled (last week) that this particular store, ReDigi, was a “clearinghouse for copyright infringement.”

I recently wrote about digital property, mostly with Steam’s store and service in mind. The upshot was that I worry about how much money I can invest into things I don’t “own” (in the sense that we are used to). Let me explain this further: most of the time, when we buy digital property, we actually buy a license to use the property, not the property itself. This is why it is coherent to courts to treat a physical object so differently from a digital one- the legal relationship the “owner” has with each is in a completely different category. This is what raises concerns for me- that my legal relationship with my digital property is different from my ownership over my physical property. Much of my concern is related to my assertion that more and more of our “property” will be digital in the future. As our property interests migrate to a digital world, it is deeply troubling to think that we would have a weaker grasp on our interests in the future.

Of course, the marketplace itself (independent of legal conceptions of ownership or license-ship) determines a great deal of this. After all, it is up to the record companies, development studios and distribution services to choose how to write their Terms of Use agreements. If these decision-makers become convinced that it is in their better economic interest to give a type of ownership that allows resale (and other aspects of physical property ownership) rather than the weaker licensing that many currently sell, the law need not budge on the issue of digital copyright. At least in theory, the law only identifies the correct situation, sorts it into the appropriate category, and applies the prescribed consequences. (The extent to which that is true is a subject of enormous debate, as you can imagine.) If the marketplace writes its contracts of sale in a way amicable to notions of property ownership for a world of digital property, the law need only enforce the appropriate contracts.

There is another sort of law, besides the law of the courthouse and the law of the marketplace, that bears on this subject. That is the law of the programing language itself. Part of the reason ReDigi  was decided to be infringement was that the transfer of the digital property was really a movement of a copy, not of the file itself. More abstractly, the issue the court takes with digital ownership is that digital objects do not behave like physical objects, especially for the reasons we suppose we have based our laws of ownership upon. Yet digital objects only behave in accordance with the programing language that describes them and the actions we may perform upon them. We have control over the digital landscape in which these objects exist, and we can decide (at least to a very large degree) how they behave and how we can (and cannot) interact with them.

In summary, I posit that changes in the marketplace and in programing standard practices can help consumers have more satisfying legal relationships with their digital property. The fact that these changes are available makes it all the less likely that the law will step in and protect consumers in this area (until or unless the abuse becomes excessively wanton).

Note 1: The structure of this approach, with a law of courthouse, marketplace, and programing code, is adopted from Lawrence Lessig’s “Code and Other Laws of Cyberspace” and “Code 2.0”

Note 2: The ReDigi ruling came out last week, but I was swamped with some time-consuming law school assignments and so couldn’t write this analysis sooner.

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Viewing People as Isolated in the Age of Interconnection

One of the prevailing views of ownership is “not a contract between myself and my property, but between myself and the world ABOUT my property.” The point of owning something is for everyone else to respect my relationship with a thing- be it a pen, a house, or trademark. Why, then, do we frequently fail to accept that piracy is a wanton and willful disrespect of an artist’s relationship with her property?

Perhaps we misunderstand property and ownership at the outset. As I have said before, a common rejection of copyright is that “copying is not theft, because it does not deprive the owner of their thing.” This apparently rests on the notion that to own something has weight insofar as it means I can have it. The competing view is that ownership has weight insofar as no one else can have what I have. This is the difference between understanding property as a contract with a widget vs. understanding property as a contract with the world about my widget.

Fundamentally, I trace this misunderstanding to a generation that internalized all too well the elementary school maxim to mind one’s own business. I think it likely that we became too adept at seeing the world in terms of single individuals, isolated and independent, alone in the world. Seeing the world like this, it makes more sense that an act cannot be wrong if it does not directly disturb others, or does not directly interact with them. I spoke to the broad implications of this kind of view in my post “A Head in the Sand is not an Ideal Source of Rights.” Applied here, attempting to see property claims as irrelevant to anyone neither an owner nor a piece of property can cause confusion over why copying might infringe on someone’s ownership. I think our views of piracy and copyright would be rather different if our relationship (or our view of our relationship) with the artist were closer (or felt closer). I wonder: are devoted fans of a band, game studio, actor, etc. less likely to pirate the works of their idols? If so, perhaps a good way to enforce copyright is to build a strong sense of community so that consumers feel that they are helping themselves and each other by abiding copyright, rather than taking free rides through piracy.