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Wednesday, February 8, 2012

Selling Your Downloaded Music Legally...

reDigi's logo from their website...

So an interesting question is being decided about your property...  er, well, even if it is your property in the first place.

Many of you like me access iTunes.  I periodically purchase music there.

Now the interesting question of the day is - what do you "own" if you do that?

For example, I recently purchased a used book from Amazon.  It arrived in a box and its on my shelf.  The question today is "do I own it?"

In the case of the book I think that the answer is an obvious "yes."  I own the book.

What I do not own is the actual content - the copywritten book guts - the words on the page.  Those are "owned" by the publisher or author.

If I chose I could sell you my book.

So what about iTunes?

Clearly any song that I purchase that's covered by the iTunes "Digital Rights" agreement you must click on says "no."  I am allowed to play it on multiple devices that I own and have registered with Apple.  But if I give you the file it won't work on your Mac or iPhone.  You have to purchase your own copy.

But what about MP3 files without a Digital Rights manager?

A company called redigi has created a "market" for used iTunes MP3 files.  According to the site "ReDigi™ is the online marketplace for pre-owned digital music and the only Cloud service that verifies whether each music file uploaded for storage was legally acquired from an eligible source [ underline mine ]."

There is a verifier tool you download (I didn't try it) that somehow snoops through your music files and decides how you got the file and, if its in fact "yours," lets you upload it to sell it (you can earn, according to the site, $0.32 USD per song).

How this works is clever and interesting.

I upload my song MP3 file to sell and it goes into my reDigi "locker." According to this PDF from reDigi's attorney ”When such a file is purchased by another user, the file pointer associating the Eligible File with the seller’s Cloud Locker is modified to associate the file with the purchaser’s Cloud Locker. In such a transaction only the pointer is changed; the Eligible File remains in the same location in the ReDigi Cloud and is not copied.”

So the idea here is that a digital file is not a "record" (basically a physical medium like a record or CD which the Copyright Act explicitly places restrictions on).  And that, at iTunes, Apple "sells" or "you purchase" the song - you do not receive a "license."

Given this (and even if the digital copy were considered a "record" they later argue) you are entitled to sell this "work" that you have purchased under Copyright law because that is explicitly granted.

But rather than reDigi somehow physically copying the file from "your locker" to the "purchaser's locker" after a sale a link is merely set up.  So if I upload a legal file to sell its never "copied" by reDigi or the purchaser.

Now so far I buy all of this.

But what about iTunes?  iTunes didn't used to allow you to "re-download" a file - but that's no longer true with iOS 5 and iCloud.  I can now access my file on another computer if its not already there.

(So suppose I have two authorized iTunes accounts on two computers.  Anything I buy on one can be accessed and downloaded on the other.)

The real question is this.  Once I buy an iTunes MP3 and I upload it to reDigi - can I ever access the file again?

As much as I like reDigi's arguments I think they are screwed with iCloud.

On the old iTunes reDigi could just delete the MP3 and I could never access it in iTunes again unless I bought it again.

Now, though, if I have another account I can just download it there.

So in some sense its Apple, I think, that's diluted Capitol Records, the defendant in this case, interest in the song - albeit it requires you to "own" two registered iTunes computers.

My guess is that Apple's agreements (both on iTunes for you and behind the scenes with the record companies) must account for this - but probably not for the "selling" of the MP3s.

Though clearly its certainly a "reasonable possibility" that someone might do it - or even sell an MP3 player with songs on it (though no one seems to care about this aspect of "sharing").

Apparently there will be a trial on this - and reDigi seems likely to win because I think that Apple has opened the door with iCloud for this to begin with - that and the fact that they "sell" you songs that you "purchase" - all things clearly recognized by Copyright law.

You can read more on this here and here.

This case, I think, will be the real bone cracker for the RIAA and the record companies in general (as well as other media).

It will establish what constitutes owners and rights under the law for things you buy that aren't physical.

reDigi is said to be confident and I can see why.

The usual "record company" arguments and threats aren't going to work as I see it.  And Apple will play a pivotal roll because reDigi has based their actions on Apple's agreements.  (However, I hope they've saved copies of the various Apple EULA's because they change with each daily release of a new new iTunes.)

Good luck reDigi!

I think its time someone cleared up what exactly I can do with what I legal buy on the iTunes in terms of reselling. 

Hopefully this will make more clear as time goes by...

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