The Wiz? Virgin Records? Tower Records? Where do we go to browse used CDs today (with the exception of a slight few “mom and pop” shops that stood strong against the reign of an emerging Internet, thankfully)? Music aficionados alike, can universally relate to the exhilarating feeling of walking into a music store with $20 in hand, and leaving with 4 CDs, tangible, in good condition, and bargained for. Rare finds were like gold mines for a young jazz collector, like myself, but where do I go now for such obscurities?
At the turn of the 20th century, we witnessed the evolution of Napster (an MP3 file sharing site), but like everything else, that too, came to an end. We lived through sites such as Kazaa, Limewire, and BitTorrent, enabling us to readily share and download an entire music library to call our own, in seconds (or minutes for those of us who were relegated to dial-up). Many, fearful of the potential legal consequences, avoided using such sites and in 2001, were given the option of paying for our music via iTunes (for nominal costs, such as $1 for one song or $10 for an album).
The idea behind the “first sale” doctrine (arising out of §109 of the Copyright Act) is a simple one – once one has acquired a lawfully-made book, CD, or DVD, one can then lend, resell, or give it away without having to get permission from the copyright holder. This doctrine makes used book stores, libraries, and the like, legal. Obvious enough, right? Not quite.
At the end of last year, Capitol Records LLC took on ReDigi, a startup company whose software allows users to resell their own legally purchased music (from iTunes) to other users of the site. Upon the sale, ReDigi’s software then scans the seller’s hard drive and removes the file from it (in order to prevent fraudulent multiple sales of the same file). Some of us never thought we’d see the day (or at least this soon) when we would be able to express our traditional rights of reselling music we no longer want, digitally. After all, we bought it and should have that power!
Capitol is of the position that the “first sale” doctrine should not apply to digital files, as there is no guarantee that the original file has been deleted on resale. Realistically, however, we live in a world of loop-holes, so ultimately, we are confronted with weighing the costs and benefits between the possible duplication of a file on one’s computer, and the denial of rights of those who have spent their hard-earned money on music (and are essentially forced into keeping that music). It seems that Capitol Records may have bigger fish to fry. Are they to ignore the offender who legally buys their new/used CD in a store, burns it on their hard drive, and then resells it? Is it then ok simply because it is tangible? Would it be more acceptable if one looking to sell their legally bought digital files burned them on a CD, and in turn sold them at a garage sale? On eBay?
We already have had to succumb to the fact that we are almost wholly confined to the vehicle of the Internet to purchase our music, and have lost the unique experience of walking into a music store (the ambiance and smell of which are still so fresh in my memory) and browsing through genres for that gold mine of an album.
This case will have deep consequences on the industry and on our rights as we know them. Interestingly enough, according to the research firm Strategy Analytics, US digital music sales are set to surpass CD and vinyl sales for the first time ever this year. If the Court rules in favor of Capitol, we may be stuck with our digital music (and book and movie) purchases forever; a sad commentary on the industry, disallowing itself to move forward with technology.
Our generation has survived the demise of the physical music store and witnessed, acquiesced to, and then embraced the emergence of online music sharing. At the very least, we should, as paying customers, be permitted to keep our rights of reselling those tracks we no longer want – something we have always been able to do in those stores we so dearly miss.