Digital first sale is where it’s at. Amazon and Apple have filed for patents on marketplaces for used digital files. The European Court of Justice held that it's legal for users to resell their software. Even the Register of Copyrights Maria Pallante has joined the chorus, suggesting that a digital first sale right is a topic Congress should consider as it revises the Copyright Act.
But if there's a party at digital first sale's house, federal judge Richard Sullivan just called the cops. His decision in the case of Capitol Records v. ReDigi definitively rejects ReDigi's aguments that iTunes users should be allowed to sell their songs to each other. Tough luck, imaginary Bruce Willis.
ReDigi's system is simple. Users who've grown tired of their iTunes tracks can upload them to ReDigi's servers and list them for sale. ReDigi charges between .59 and .79 cents, a nice discount from Apple's .99 cents and up, of which the seller gets 60%. When the sale goes through, the seller loses access to the track and the buyer gains access.
So, what’s the issue? At oral argument, Judge Sullivan drew a Star Trek analogy: He asked whether ReDigi was more like a transporter: "Captain Kirk going from the Enterprise to the planet through that transporter thing, where he's not duplicated.” Or, was it an advanced replicator, “where there's a good and a bad Captain Kirk where they're both running around."
The problem for ReDigi, and the reason the case is so fascinating, is that the Internet is both a transporter and a cloning machine. Unfortunately, copyright law is firmly, thoroughly convinced that technologies can only be one or the other.
Transformer, or Replicator
The Copyright Act was drafted with two scenarios in mind: one, we could call the “transporter” or the “post office,” where someone takes a book that's here and moves it over there, out of one person's possession and into another's. Copyright calls this a “distribution,” and the first sale defense applies to it. The total number of copies is unchanged: there was one before, and there's one after.
The other offline scenario, which we can call the “replicator” or the “printing press,” takes an old copy of a book and makes a new copy in the same place. Copyright calls this a “reproduction,” and it's not subject to first sale. The total number of copies increases: there was one before, and there are two after.
But online, a download is a bizarre hybrid of the two. There's an old copy here on my computer, and once I send you the bits, there's also a new copy there on your computer. The Internet therefore is something of a “transporticator” that creates a perfect replica of Kirk down on the planet, while also leaving the original Kirk free to roam the Enterprise.
Courts have generally said that downloads are both a reproduction and a distribution, since it involves both the creation of a copy (on your computer) and a change in who has access to a copy (you didn't before, but now you do). Since first sale is defined in the Copyright Act as a defense only to distribution, and not to reproduction, the courts have said it doesn't apply to downloads. If that reasoning sounds unduly formalistic, you could also say that first sale shouldn't kick in when the number of copies in circulation isn't conserved.
But ReDigi added a twist: it deleted the original track from the seller's computer. Thus, instead of being both a transporter and a replicator, ReDigi argued it was a pure transporter. And this, it claimed, made its sale into pure distributions: transporting a single copy from here to there. There’s no reproduction, because were just as many copies before ReDigi as after.
But, as the philosopher Derek Parfit showed at length in the brilliant Reasons and Persons, even a pure transporter raises profound and difficult problems. When Kirk stands on the transporter on the Enterprise, is the person who materializes on the planet still Kirk?
ReDigi said yes: the copy that emerges from its transporter is the same copy that goes in. It is, after all, bit-for-bit identical. Judge Sullivan, however, said no, because the new Kirk-copy is a different “material object” than the old one, made up of different atoms, stored on a different hard drive.
Indeed, to borrow an idea from Parfit, consider what would happen if the transporter malfunctioned and instead functioned just like the Internet—that it is, as a “transporticator.” Old Kirk is still standing on the Enterprise; new Kirk is standing on the planet. ReDigi's solution is worthy of Evil Spock: set phasers on kill, execute the old Kirk, and toss him out the airlock.
From the perspective of the Enterprise crew and the aliens on the planet, the outcome is very much as if Kirk boarded a shuttle and flew down to the planet (if a bit faster). There used to be a Kirk here, and now there's a Kirk, there. But when Kirk takes a shuttle, Judge Sullivan would say that it is the same Kirk who arrives on the planet. Not so with the ReDigi transporticator.
ReDigi, of course, begs to differ. Its position, that the copies are the same, is also philosophically plausible. Just a little messier, and harder to square with the text of the Copyright Act.
Who Gets to Read?
This distinctions in the ReDigi case are quite literally metaphysical, and a sign that we're getting away from the more pragmatic questions of real-world consequences that ought to drive copyright policy. Whether Copy A is the “same” as Copy B, and if so in what senses, is not a question that anyone ought to care about. Authors, publishers, readers, libraries, and everyone else with a stake in the copyright system care about who gets access to books and on what terms. All of the technological details ought to be cute irrelevancies once the basic questions are answered. Who gets to read? Who gets paid?
Digital first sale may not be a particularly fun party. First sale’s core premise is that there ought to be the same number of copies kicking around at all times. It gives the copyright owner sole and despotic dominion over the creation of new copies, but very little say after that. But, in the digital world, where copying is fast, cheap, and out of control, this compromise may not be good for authors—or readers. Digital first sale may sound like a user-friendly doctrine, but the technical machinery required to ensure that the seller's copy really has been deleted is indistinguishable from a pervasive Digital Rights Management system.
One way out of the mess might be to answer more questions with fair use, and fewer with first sale. In the Redigi case, Judge Sullivan’s fair use analysis was cursory, in part because he looked at the question from ReDigi's point of view rather than from ReDigi’s users. But fair use’s famous—no, make that infamous—context-sensitivity gives it the flexibility to look past how books are transmitted and stored and focus instead on how they’re bought and read.
Perhaps copyright would be better off backing away from its obsession with counting copies. It's not the transporter that makes our Star Trek future of digital abundance so exciting; it’s the replicator.