By Alex Sayf Cummings



Is there such a thing as a “used” MP3?

That was the question before the United States District Court for Southern New York earlier this Spring, when Capitol Records sued the tech firm ReDigi for providing consumers with an online marketplace to “sell” their unwanted audio files to other music fans.

ReDigi only allowed its users to upload and transfer files they had lawfully purchased through iTunes—you couldn’t rip your dad’s Led Zep CD and start selling bootleg MP3s by the dozen—and the company claimed that its technology ensured that the file was scrubbed from the users’ computer once it was sold to someone else. In essence, users could not have their cake and eat it too.

At the core of the case was a key precept of American copyright—the first sale doctrine. This tenet gives consumers broad latitude to do what they please with a work once they’ve purchased it. Dan Brown can’t come into your house and harass you for using The Da Vinci Code to prop up a chair with one short leg, nor can he prevent you from loaning the book to a friend.

The District Court had to determine whether this policy applies in the digital world, where copies can be made at virtually no marginal cost and successive copies are generally as good as the original. In his ruling, Judge Richard J. Sullivan decided that the same rules could not possibly work for MP3s as for books or CDs.

The ReDigi case raises some thorny issues, but they are by no means new to the Internet or MP3s. Copyright interests have always hated “secondary markets” for used books, music, and movies, and they have long lobbied for greater control over their products. In 1906, when the US Congress first grappled with the question of how to regulate the new recording industry, lobbyists for music publishers beseeched lawmakers to forbid people from sharing music with each other. Most alarmingly, churches were buying one set of sheet music for their choirs and then loaning it to other churches—thus denying the publisher of an additional sale.

Congressmen were skeptical, though. Buying a piece of sheet music did not imply a license with the publisher, allowing only the purchaser to use the product in specified ways. Rep. John C. Chaney, a Republican from Indiana, asked a lobbyist if music publishers really believed that “the property itself does not carry the right to use it.” The answer was unequivocal. “That is the point,” the lobbyist replied. “You have stated it better than I could do it.”

Congress declined to heed the industry’s cries in 1906, but the issue of how consumers may use copyrighted works has cropped up and again. In the 1930s some record companies placed labels on their discs that said they were for “home use only”—not for playing on the radio. The courts rejected this restriction and sided with broadcasters. In the early 1980s, the music industry successfully lobbied Congress to pass the Record Rental Amendment, ensuring that a Blockbuster-like store for renting music would never emerge.

Hollywood, of course, had no love for its products being copied either. Movie studios had already tried to snuff out the VCR by fighting Sony all the way to the Supreme Court. Yet the Court ruled in the 1984 decision Sony v. Universal that consumers had the right to tape TV shows and movies on a noncommercial basis.

Today, we see a renewed attack on the rights of consumers by big business. Overly zealous regulation means that consumers are essentially barred from “unlocking” a cell phone, or severing the device from its original wireless carrier. Critics warn that such restrictions not only limit the rights of consumers but threaten to stifle old-fashioned tinkering and innovation. It is as if Ford told customers that they can’t pop the hood of their car and mess around its inner workings (which is how the world got NASCAR, incidentally).

How far should a phone company’s power extend into our personal lives when we buy one of their products? When you buy a phone or an MP3, is it really yours—or has a company just loaned it to you with a laundry list of stipulations and provisos? The age of cloud computing is upon us, and soon most of our books, movies, and musics might have no material form. We may discover that buying something no longer means owning it in any meaningful sense—and our stuff isn’t really ours anymore.

Alex Sayf Cummings is an assistant professor of History at Georgia State University, and co-editor of the blog Tropics of Meta. His book Democracy of Sound: Music Piracy and the Remaking of American Copyright in the Twentieth Century was recently published by Oxford University Press.

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