If I have an iTunes song that I lawfully purchased and downloaded, can I sell that copy to anyone else? Ever? Not according to the Court of Appeal for the Second Circuit in Capital Records v. ReDigi.
ReDigi was a company that offered such a promise: sell your unwanted iTunes music! And they appear to have designed software to make that transaction as close to a physical transfer as possible:
ReDigi’s system differs in that it effectuates a deletion of each packet from the user’s device immediately after the “transitory copy” of that packet arrives in the computer’s buffer (before the packet is forwarded to ReDigi’s server). In other words, as each packet “leaves the station,” ReDigi deletes it from the original purchaser’s device such that it “no longer exists” on that device. Id. As a result, the entire file never exists in two places at once. Id.
The problem is that the Copyright Act prohibits making copies. And even if ReDigi effectively deletes the original copy (putting aside that this is relatively easy for a user to hide), ReDigi still makes a new copy. The law is violated.
ReDigi makes the reasonable objection that users should not be forced to sell their entire computer hard drive to sell the iTunes song they downloaded. The Second Circuit shrugs:
A secondary market can readily be imagined for first purchasers who cost effectively place 50 or 100 (or more) songs on an inexpensive device such as a thumb drive and sell it. . . . Furthermore, other technology may exist or be developed that could lawfully effectuate a digital first sale.
Sure. Ok. Although I think perhaps the court doesn’t understand the market, users, or computers.
You just don’t own digital copies in the same way you own physical copies, absent some major change in the law.