16 February 2012

Cyberspace March 2012


You’re probably not as loose-tongued as as your average Twitterer (http://twit.com), but some people have managed to ruin their holidays. The Sun reported (http://goo.gl/5NpGf) that two UK citizens recently arrived in Los Angeles for a holiday and were promptly returned to the UK. Why? One of them had tweeted in a fit of pre-holiday excitement that he was going to dig up Marilyn Monroe (a TV show quote), and he tweeted another friend if she was “free this week for a quick gossip/prep before I go and destroy America? x”. Leigh Van Bryan said that “destroy” in slang meant “partying.” The couple were flagged by the USA Department of Homeland Security, and were handcuffed and imprisoned overnight. Watch your tongue.

Digital ownership
Now that many of us download audio books, electronic texts on the Kindle, and download music, the concept of lending second-hand books and LPs/CDs is waning fast. But, why not sell your electronic assets when you’re done with them? You’ve often paid a high price, so why not sell them on? Why can’t you transfer that licence (and the related media) to another person? There are some technical difficulties, since you might have to reliquish usernames and password, but there may be license issues too.

ReDigi (https://www.redigi.com/) decided to have a go at this market by facilitating “the verification and hand off of a digital music file from the seller to the buyer.” They work to ensure the source is legitimate, the vendor really is the licence holder, and that any copies held by the vendor are deleted. Capitol Records didn’t think much of this idea, and in the US District Court, Southern District of New York, in Capitol records, LLC v ReDigi Inc (No. 12 Civ. 95 (RJS)) Capitol sought an injunction preventing ReDigi from carrying on that business. The court denied the injunction, but the real issue is yet to be tried.

The USA has a “first sale” doctrine which permits the purchaser of a copyrighted work to transfer for value a copyrighted article to another person. However, it’s common for licence agreements to state that they are not transferable, and the litigation has been endless. There are cases on CAD software, promotional CDs, the World of Warcraft game and others.

I might buy a CD for $15, or I may “buy” the same album electronically for the same amount. Have I purchased something less by buying the latter? I know I can loan, give or sell to you the CD and I’ve done nothing wrong. If I give you copies of the downloaded music on a USB key, and delete all my copies, where do I stand? Common sense tells me that if I have bought a physical thing for value (like a car) then I should be able to transfer it for value. My car is full of copyright software, and is no doubt subject registered designs, and patents. Of course I can sell it, so what’s the difference? One key difference is that I haven’t copied anything in my car, but to give you my electronic music I have to copy it from my computer. Is that an infringing copy provided that I delete my copy? I have paid the same amount for the music in each case.

I think the real answer lies in the commerciality of the deal. If the purchase price reflects that I no longer receive two rights (the right to loan an article to my friends or family, and the right to sell it second hand) I’m happy. Sadly there’s not much evidence of that in the market.

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