Numerous websites have been reporting on the latest twist in the ReDigi case (for example, here on Paid Content). The case sets an important potential precedent for other business plans involving the sale of digital content. I know Amazon has contemplated a move into this area, and I wonder if they might be the ones with the deep pockets, not to mention the legal might, to try and fight this one.
The ruling was interesting in that, from what I’ve read, it didn’t oppose the sale of digital media in principle. Rather, it opposed the ‘first-sale doctrine’ defense that ReDigi was using to justify its model. The first-sale doctrine is what allows the second-hand print book market to flourish. It allows for someone who purchased an item legally to resell it without owing further compensation to whomever they bought it from. In other words, the publisher already got its cut on the print books when the first owner bought them. The first owner is then free to transfer his or her physical books to another person as they see fit.
So, what was the wrinkle in the ReDigi case? It was that in order for ReDigi to verify that you are the owner of a digital media purchase, and that you don’t in fact have a copy left over once you sell it through them, you have to copy your file to their server for authentication and processing. This creation of a new file is what disqualifies the sale as being covered under fair use, since fair use only applies to the item you actually bought!
* * *
It’s a tricky semantic argument to get your head around. But in essence, what they’re saying is that the file you download at purchase may in fact be covered by the first-sale doctrine. But since the file ReDigi is selling is a copy, it is therefore not your original purchase. And so while the sale might be defensible for other reasons, it’s not defensible under the first-sale doctrine.
I think a lot of the appeal process for this case will revolve around how Amazon (or ReDigi, or whomever takes this on) defines just what it is that customers buy when they buy an e-book or an MP3. If I bought a license and not a file, maybe that would be subject to different rules. But if the court is going to uphold this idea that the sale was of a certain specific file—to convert the physicality of a paper book into the physicality of a specific computer file created at the time of first download—then this might imperil Amazon’s plans for a used e-book market.
* * *
Personally, I think both sides have the wrong idea here. I don’t think the publishers should be trying to sell us a book at all. I think the only way to truly be fair about this is to turn the whole thing into a rental. Lower prices accordingly, have the rental expire after 30 days, and then make every eyeball pay.
But if the publishers and the authors and the bookstores are calling it the sale of a book, and charging full retail price for it, I think it’s understandable that people want to maintain their ‘book’ rights, and resell them if they wish.