Judge Rules Against Pre-Owned Digital Sales

[Epona]

Ummmmmm....question:

Is there anything to stop someone from making a copy of a file/program/whatever - perhaps onto a separate harddrive - and then just selling the original?

If not, there's no way this could possibly be legal.

You mean the physical original? No, it's even easier to copy and use a physical CD or DVD than it is to copy and use something bought from a DD service. DD services usually have periodic DRM checks where a CD would not.

 

[Owyn_Merrilin]

I just love how the content in question is either licensed material or a product, but always favouring the company even if it contradicts itself.

The ruling as it stands doesn't make logical sense (not that anything to do with copyright law ever has).

The part that has me scratching my head is this:

...because digital music files must be embodied in a new material object following their transfer over the internet, the court determines that the embodiment of a digital music file on a new hard disk is a reproduction within the meaning of the Copyright Act.

By that reasoning, wouldn't you be guilty of violating copyright by moving songs from iTunes to your iPod or something similar with the non-Apple equivalents?

Funny you should mention that, because that's the entire reason we're saddled with this whole "software license" BS today. Some judge in the 70's was convinced by some slick lawyer that installing a piece of software on a hard drive, or loading it in system ram, counted as making a copy, and therefore was in violation of copyright without a license tacked on. And we've been dealing with the fallout of that crappy decision ever since. If that judge had had a clue about the way computers worked, we likely would have never had any of these problems, because copyright exists precisely to keep people from copying and selling things that can be easily copied, like books, music, and yes, software. Consumer level[footnote]as opposed to enterprise level, where there's often a damned good reason for getting things hammered out with a contract, and where both sides of the agreement actually hold a fair bit of power[/footnote] software licenses are totally superfluous, and exist only to infringe upon consumer rights.

 

[RJ 17]

Ummmmmm....question:

Is there anything to stop someone from making a copy of a file/program/whatever - perhaps onto a separate harddrive - and then just selling the original?

If not, there's no way this could possibly be legal.

You mean the physical original? No, it's even easier to copy and use a physical CD or DVD than it is to copy and use something bought from a DD service. DD services usually have periodic DRM checks where a CD would not.

That's what I figured for games, specifically, like those purchased on Steam or Origin. But from the sound of things, this was specifically dealing with music files.

I mean I don't know all the details involved in it, so I'd actually kinda have to hope that it wouldn't be as easy as ripping the songs from a CD onto your computer and selling off the playlist...

That's the kinda thing I'm talking about. What's stopping someone from, for instance, buying an album off iTunes, making a copy of all the songs, and then just reselling the album over and over?

 

[FEichinger]

Ummmmmm....question:

Is there anything to stop someone from making a copy of a file/program/whatever - perhaps onto a separate harddrive - and then just selling the original?

If not, there's no way this could possibly be legal.

And that is illegal. It's hard to track and thus usually not enforced, but it is illegal. You are allowed to keep as many copies of something as you want - as long as all copies remain in your hands. If you plan on passing any of these on in any way, shape or form, that is illegal. You can only legally sell any of those copies, if you destroy all other copies beforehand.

 

[sXeth]

To be fair, the ReDigi thing does sound pretty ludicrous.

Oh, hey, I'll just sell this mp3 file to you, and totally not keep copies, or keep selling copies. I mean, how are they tracking the ownership of these?

Well, Redigi just kindly lets you access iTunes so you can buy songs and not get them yourself, but have them land on Redigi's cloud. You can then buy or sell songs on your subset of ReDigi's cloud while they monitor what songs you actually have. And stream them.

Really, the ReDigi thing seems like a scam anyhow, its basically a music always-online DRM client anyhow. I'm not really mourning its loss here.

 

[Frederf]

This entire article is so very uneducated.

1. It's NEVER nebulous who owns the copyright as the article wrongly indicates. The creator does, the licensed used does not. Do not confuse the design with the use of that design. That's kindergarten level of IP understanding.
2. The judge is an airhead since it is theoretically possible to transfer without copying, just simply delete the original either as you go or once complete. The fact that the transfer process might instantaneously have duplication which is quickly remedied before any party can make use of the information is a complete red herring and a non-issue. Yes if you make a copy and use both the original and the copy that's a violation but we know piracy is illegal since forever.
3. The only and I mean ONLY issue present is which takes precedence, first sale doctrine or the license agreement as written (which aaaaallllways prohibits transfer).

For a long, long, long time software license agreements have been made "one use" and "non-transferable." Selling used Xbox games, giving them to your friend while deleting it off your computer, etc. have nearly always been in violation of the EULA. This is completely not new. What is new is only now is actual enforcement starting to become practical on this ancient caveat. If this was the EU where consumer protection and citizen rights actually mean something, then these "non-transfer" clauses in EULAs would be legally void allowing 1st sale to occur. The companies wouldn't be obliged to support such transfers but they couldn't forbid them.

But no, this is the US where the companies run the show. The idea of a product being sold as a "ticket to ride" to a specific person that has rights restricted to use and have no right to transfer is absolutely going to stick. On the surface this agreement is just fine. An informed population will see these offers and agreements for exactly what they are. Unfortunately we are not an informed population. The concept and distinction between a transferable license and one that isn't is too subtle for our fat heads. Similarly a company that wished to take the high road and actually allow transfers (it is just a contract after all) would find it very difficult to make the customer realize what value that is.

Only years from now when the reality of EULA enforcement locks down all the rights we've been wrongly enjoying previously will we have a chance to get these concepts through our collective thick skulls. It's then a question whether we'll cave into having less value for the same price, split markets based on license restriction, or see a price drop due to the lesser value of a restricted ticket.

 

[Chubbs99]

I would be fine if they said that Digital Resale was infringing on copyright, but in the same breath the judge better also condemn selling digital media being sold at "disk" prices. If digital media was sold at a reduced cost due to lack of overhead, and lack of middle man mark up, shipping, ect... And we were paying Steam Sale prices for NEW games. Then to bad if you can't resell it, you spent a few days lunch money on a game and didn't like it, better then paying almost a weeks worth of wages (for some people) for a game to trade it in for a what $5? to GameStop

 

[Entitled]

This entire article is so very uneducated.

1. It's NEVER nebulous who owns the copyright as the article wrongly indicates. The creator does, the licensed used does not. Do not confuse the design with the use of that design. That's kindergarten level of IP understanding.

Your point has been inevitably wrong as soon as you started talking about IP as if it would be actual property that one person "owns" and others not, as opposed to a regulation determining exactly how much monopolistic control artists should have over the distribution of their content.

The issue shouldn't be exactly what these (faulty) ownership analogies allow in the first place, but what good reason IP holders have to call dibs on secondhand sales, that would otherwise endanger the creation of useful arts, and whether it's big enough to limit consumer rights and public rights in favor of it.

 

[Rodrigo Girao]

It's time to abolish the whole quaint notion of copyright. It benefits a few fat cats, at the expense of society and culture as a whole.

Relevant reading: Against Intellectual Monopoly [http://levine.sscnet.ucla.edu/general/intellectual/againstfinal.htm], by economists Michele Boldrin & David Levine.

 

[Costia]

There is a way around copying: use a cloud service.
You buy the song, it is stored on ReDigi's servers.
When you want to use it, download it - its legal to make copies for yourself.
when you want to sell it - delete the local copy - now the song is only on the server.
Now you can sell the ownership to that copy - no need to copy it - it stays on the same server - only the access permissions are changed.
so during the sale no files were copied or moved, and now the new owner can make a local copy for himself.

 

[RicoADF]

"A US Federal Judge"
Well that first line explained everything. The US laws are so far behind regarding digital products and their rights for consumers theres no surprise this is the result. After all why would they do that when they make more money out of forcing their public to buy new (from taxes and payments from large corporations like EA/Activision/Disney etc).

 

[Entitled]

It's time to abolish the whole quaint notion of copyright. It benefits a few fat cats, at the expense of society and culture as a whole.

Relevant reading: Against Intellectual Monopoly [http://levine.sscnet.ucla.edu/general/intellectual/againstfinal.htm], by economists Michele Boldrin & David Levine.

I think thatr's a bit extreme.

While I agree that copyright has gone too far, there are also situations where it helps to uphold an industry without significantly restricting the public.

For example, TV broadcasting. What do you think, how long would that model last, if every TV channel would be allowed to air each other' shows?

Or book publishing. While restricting the copying of ebooks is stupid, there is no reason why the original writer shouldn't have a monopoly at least on the printed version's distribution, thus earn some extra instead of letting printers sell anything on their own. (and while the content is still accessible to all).

 

[Voltano]

So, if its illegal to distribute a digital product to another person (either through marketing or relational purposes) because you can still own a copy of the product. Then why is it legal for the developer to sell their same digital product to us while still keeping the original they worked on and are making copies of to sell?

There's a fundamental difference between the person making the content receiving money for multiple copies of their work and you making money from reselling. Both a 'used' and a new digital sale are identical from the consumer's perspective, the difference is who makes the money. You have not done any of the work here, and you aren't even losing anything in the transition, whereas the person who made the product spend large quantities of time constructing the product. Ultimately when you buy a song/game you're not paying for the data itself but what the data is. Five minutes worth of random static takes the same amount of time/effort to reproduce/store/copy as a five minute song, but you're not paying for the ingredients.

I can agree to that, but what about third party, digital distribution sellers? Steam, Origin, GamersGate, Green Man Gaming, GOG, and etc. Developers like Fire Axis with "XCOM: Enemy Unknown" or People Can Fly for "Painkiller" distributed a copy of their game to these digital distribution platforms, and they sell a copy of that copy for us consumers to download and play. These third party sellers might get a cut of the sales (maybe 30%) and the rest goes to the devs. But still, it points out that digital distribution of any software/product is copied outside of the developers hand. Legally. Actually these third party sellers might be getting full profit on the digitally distributed game if its an old product. Who would GOG pay for each sale of "System Shock 2"? Does Nintendo use the money they get for a purchase of "Super Mario World" on their eShop to support the original developers who may not be working for them?

That is a tricky issue when it comes to digital distribution as there is no wear and tear to it overtime (unless it is programmed like that, but that could be labeled as unfavorable DRM). Game developers can ensure people could keep coming back to them or these digital distribution sellers because they release patches or DLC through them, such as getting new DLC for Skyrim. But other digital distribution products like music and films can't squeeze out updates like these on a frequent basis so they stick to their iTunes or Netflix 'licenses' on who can and can't copy it. Non-game software also releases frequent updates that might not change much yearly yet still encourage selling the same product, such as Quicken or Adobe's illustration programs.

 

[Norrdicus]

Okay, so does this mean that I couldn't, for example, sell my Steam account to someone else?

 

[Strazdas]

So according to this Judges logic, installing a game is illegal reporoduction and everyone that ever done that is a criminal.
Actually, the only way to USE a file is to copy it. whenever you play a digital file it is COPIED into your ram and played from there. only players that play directly from the CD are excerpt from this, but they are pretty much extinct as buffers are invented for a reason. this judge pretty much ruled that any and all digital property is illegal. good god, how stupid are the US judges?

[insert comment about how Europe is far superior to the US, in legal terms]


OK, seriously, I have to side with the judge on this one. Used physical games are one thing. But when you can copy a game onto a blank CD-ROM, then sell the game to the used game retailer without actually losing your access to the game, it gets a bit trickier. Then again, I'm assuming this is done over the PC. It's even easier on a console. You just have to transfer the game over to a flash drive in that case, then voila, you now have a copy to keep, and another one to "trade in".

BUt it is. for one, EULA has 0 legal power here, that means, you cant be scammed into no lawsuit agreement by eula and such. Not to mention patent trolling.
Thats the thing. you need a system that makes sure you sell the file and you wotn be able to use it. but instead of making such system themself the big companies start crying how wrong it is that others use the empty market demand and actually HELP PEOPLE. but the good peopel are also a pain in the but here with they "need" to have physical copies of a license to play a game (no you DONT own the game, you own a license to play it. you stopped owning games years ago).
If you think copying console game is as easy as trasnfering a game file then you clearly are not qualified enough to make such claims.

By that reasoning, wouldn't you be guilty of violating copyright by moving songs from iTunes to your iPod or something similar with the non-Apple equivalents?

You are. it is not legal to copy your itunes music to your ipod. at least not here. You can thank the 2010 copyright law editing for that. in fact if we interpret it litteraly, showing a movie to your neighboar is illegal.

Well actually they cant.

Well, actually, they did
http://www.escapistmagazine.com/news/view/118245-EU-Court-Legalizes-Selling-Used-Digital-Games
http://www.pcgamesn.com/court-justice-european-union-rules-author-software-cannot-oppose-resale-his-used-licences
I cant seem to locate the article now, but escapist wrote that law experts claimed that while we cant resell them now, a single complain suing steam would force them to add such feature in EU or close down sales altogether.

To be honest while there are some Steam games that I would like to get rid off I do think that there might be some weird consequences due to selling used-digital content. For example why would you ever go to Steam to buy the content new if you could go to the "online Steam used-store thingy" and get the same exact content cheaper?

Because the amount of people selling used content is not big enough? if i would say "Why would anyone ever buy a new game if they could just go to gamestop and buy a used one" the argument would be as valid as yours. except that doesnt work in real life now does it?

Used content in the real world are most of the time cheaper because the fact that it was used means that it isnt in perfect conditions, in here it could become a "I dont want this anymore and I'll take anything for it" thing, kind of like on Ebay.

and ebay have bancrupted real world manufacturers? oh wait, they havent. unless the disc is physically damaged, it has not lost any conditions.

That means that there could be a huge amount of really cheap used games due to the amount of games that people buy on Steam Sales in bundles and shit... (seriously, a lot of people have quite some games that they arent even planning on playing) so now there would be a place that would make Steam Sales (and their deal of the day and weekend) seem like a time to buy cheap to then sell with a price in between the original one and the one on sale (people that missed the sales or are new to Steam would be the targets)

the game makers would have to actually start creating games that people want to keep instead of a play-once 6 hour titles? of, the horror!

I guess you could say that you are only selling a "license" to a particular product. But that implies restrictions on the product. You can't copy it; deconstruct it; and you can't share it. That sounds like you are giving access to an amusement park or a museum, where you retain the product but offer it as a "service". But you still offer the product with minimal licenses until people abuse it. So you restrict access to the museum/amusement park/product by keeping it open for a fixed duration, such as only being open in the morning and allowing 50 people in the building to play it. Sounds like you would need some kind of server to run the product on if you were going to maintain that kind of licensing.

Wait, I think EA answered my question on how that would work. Hrm...

It can be done right - valve.

 

[Strazdas]

I think thatr's a bit extreme.

While I agree that copyright has gone too far, there are also situations where it helps to uphold an industry without significantly restricting the public.

For example, TV broadcasting. What do you think, how long would that model last, if every TV channel would be allowed to air each other' shows?

Or book publishing. While restricting the copying of ebooks is stupid, there is no reason why the original writer shouldn't have a monopoly at least on the printed version's distribution, thus earn some extra instead of letting printers sell anything on their own. (and while the content is still accessible to all).

the example is extreme, but it is not wrong. and thats kinda big deal, if your extremes work, then the whole idea is pretty damn good. personally i am for severely cripling the copyright monopolizzation but not total extinction. for one instead of prolinging they should have lowered time till public domain. but thats a whole new can of worms.
TV beign able to broadcast each other shows would create a healthy competition of needing to do something more than just make slightly better than average show and throw as much crap on your users as you can get away with. the people would stop watching fox for couple good shows and watch the same shows on channels that are more user-friendly. that will destroy the conservative 19th century tactics of monepolized entertainment industry - yes. is that a bad thing?
as far as educational books are concerned noone shoudl ever have a right to allow or dissallow any of them. as far as fiction goes i am mroe lenient, for it is an invention. aqnd while the author should be allowed to make money on it, he should NOT be allowed to completely forbid it for certain people (think, selling only in country x). as it is right now, publishers, not authors, have a monopoliy on whats printed. the current model has hurt the book industry more than free acess to book model would.

I can agree to that, but what about third party, digital distribution sellers? Steam, Origin, GamersGate, Green Man Gaming, GOG, and etc. Developers like Fire Axis with "XCOM: Enemy Unknown" or People Can Fly for "Painkiller" distributed a copy of their game to these digital distribution platforms, and they sell a copy of that copy for us consumers to download and play. These third party sellers might get a cut of the sales (maybe 30%) and the rest goes to the devs. But still, it points out that digital distribution of any software/product is copied outside of the developers hand. Legally. Actually these third party sellers might be getting full profit on the digitally distributed game if its an old product. Who would GOG pay for each sale of "System Shock 2"? Does Nintendo use the money they get for a purchase of "Super Mario World" on their eShop to support the original developers who may not be working for them?

and here you stepped on another copyright problem - developers. While this is not that much widespread in gaming yet, in music and movies the developer and copyright owner is not the same person/entity. to pick your example, GOG does not have to pay anyone for system shock 2, becase GOG is the one that you should legaly pay to. the system is so twisted that legally developers get only as much as publishers WANT to give them. the times of Nobel getting a cut for each dianmite stick are over, had he invented it in these times he woudl ahve gotten a one-off 100.000 dollar payment and good bye any right to ask for more.

 

[Subbies]

To be honest while there are some Steam games that I would like to get rid off I do think that there might be some weird consequences due to selling used-digital content. For example why would you ever go to Steam to buy the content new if you could go to the "online Steam used-store thingy" and get the same exact content cheaper?

Used content in the real world are most of the time cheaper because the fact that it was used means that it isnt in perfect conditions, in here it could become a "I dont want this anymore and I'll take anything for it" thing, kind of like on Ebay.

That means that there could be a huge amount of really cheap used games due to the amount of games that people buy on Steam Sales in bundles and shit... (seriously, a lot of people have quite some games that they arent even planning on playing) so now there would be a place that would make Steam Sales (and their deal of the day and weekend) seem like a time to buy cheap to then sell with a price in between the original one and the one on sale (people that missed the sales or are new to Steam would be the targets)

Im just afraid that some issues might appear out of the result of this change due to the fact that this industry is changing a lot with time without anyone that actually seems to understand it... or something...

Valve could always take a cut of the sales and then distribute part of it to the games' developers or/and give bonuses to the people who buy the new games and not the used ones (kinda like what they do with pre orders). There are tons of ways this could work out.

 

[flarty]

Recording and reselling (of physical goods) aren't related, however. A physical good can be resold without it being replicated beforehand. For digital resale, it has to be copied, this is a technical requirement.

Same problem, different means, no matter how you dress it up.

 

[GoddyofAus]

This sounds to me like the same old strawman argument that Copyright law has always fallen back on;

"Transferring a digital file from one computer to another is not a real re-sale because there is every likelihood you're a pirate." Because EVERYONE is a pirate now. The Media industries have the judges and lawmakers all but convinced (bought).