Want to Sell Your Mp3s? Tell It to the Judge

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This week, two different federal courts delivered important and seemingly contradictory decisions about the way we consume digital entertainment.

One case involves ReDigi, a platform that lets you resell digital songs you bought from iTunes but decide you don’t want on your computer any more — like taking your CDs to the secondhand store. Record companies argued that because the technology requires that a copy be made, ReDigi’s service infringes on their copyrights; Judge Richard Sullivan of the US District Court, Southern District of New York, agreed.

The other case involves a new digital streaming service called Aereo that captures broadcast TV signals and routes them over the internet to users who pay a fee. Network broadcasters took Aereo to court, but in this week’s ruling by the Second Circuit Court of Appeals, Judges Christopher Droney and John Gleeson denied an injunction against Aereo. (The third judge on the panel, Denny Chin, dissented, calling Aereo “a sham,” “a Rube Goldberg-like contrivance, over-engineered ... to take advantage of a perceived loophole in the law.” Chin’s occasional hobby, crafting theater based on historic trials, was profiled by Studio 360 in 2009.)

TV viewers 1, iTunes users 0. Both cases “turn on the idea of what’s unique and what’s one-at-a-time,” according to Adam Liptak, who covers law and the Supreme Court for the New York Times. Although ReDigi’s model promises to move our unwanted mp3s to a secure digital locker where they become inaccessible to the seller, the service is “too clever by half,” Liptak tells Kurt Andersen. “There are problems every step of the way as a matter of law and as a matter of technology.” The 1976 Copyright Act “treats these [audio files] as reproductions, as copies, not as a single unitary material object” — like those old CDs — “that you’re moving from place to place.”

In the case of Aereo, earlier decisions that allow us to use DVRs and VCRs set a key precedent. Aereo uses “antenna farms” of thousands of antennas, each assigned to an individual subscriber. “Here the court was persuaded that the individual antenna makes it enough of a one-at-a-time thing,” says Liptak.

The fact that these cases are decided on a law that predates the digital era by decades makes a lot of work for lawyers and judges; it would be up to Congress do the real heavy lifting. “The Copyright Act needs to take account of where we are now and not in 1976,” says Liptak, but he is not optimistic that will come to pass. “The correct answer is that it should be Congress, and the likely real-world answer is it’ll be the courts” that continue ruling on digital rights.

→ Should people be able to resell their used mp3s? Should it be legal to stream live broadcast TV over the internet without the networks getting a dime? Tell us in a comment below.