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RIAA claims you do not own your iTunes music purchases (extremetech.com)
168 points by mrsebastian on Nov 16, 2011 | hide | past | web | favorite | 76 comments

It seems to me that deleting the original file is hardly good enough.

I think that a secondary market for digital works is something that will just never work like it does for physical media, and that's something we just have to accept and move on with.

My biggest worry is that ReDigi is going to end up losing a lawsuit that sets a bad precedent and makes future better technologies impossible.

That said, the RIAA's ownership vs licence vs access debate is BS, and they never even stick to it.

The RIAA needs to change course soon, because unlike the book and movie industries, I can easily imagine a future without a music industry at all.

As for Amazon vs. the authors? I think they are pretty much both wrong, and I'm staying out of it.

MDY v Blizzard [1] already set an (absurd, unconscionable) precedent that people who purchased World of Warcraft did not own their copy of the digital work, but were licensees -- regardless of whether they ever agreed to the EULA or the service's Terms of Use.

Further, the court held that copying a digital work into in-system memory by any program not 'unauthorized' by the rights-holder constituted infringement and the operator thus subject to statutory penalties. (Seriously. Let that and its implications sink in.)

So the bad precedent already exists. And not only does it set some troublesome legal hurdles for future technologies, but a large swath of current technologies are suddenly in a very tenuous (and expensive) legal situation.

If the RIAA sticks to this 'license' argument, they could hold that not only is it infringement to copy your DRM-free iTunes tracks out of iTunes, but so much as playing your iTunes-purchased tracks via software other than iTunes is infringement (as it necessarily requires loading a copy of that digital work into memory).

[1] http://docs.justia.com/cases/federal/district-courts/arizona...

That's not unreasonable - you don't own World of Warcraft you own a license to play it.

If you owned it you could reuse the characters in your own game, produce your own movie of the game and so on - not bad for a $50 investment. Think of the same with a book - you don't own the IP in the book and paying $0.99 on amazon doesn't give you the right to produce your own HP movie franchise.

Redigi's business model is exactly the same as you ripping your CDs to mp3 and then selling the disks, does anyone really think that people selling their downloads aren't keeping a copy?

You agree to a license to a piece of art work - you buy whatever the copyright holder decides is the deal. If that means only listening to it on an Apple hardware, only listening at home, or not letting your neighbor watch the movie with you - well that's tough, find a different artist.

The famous French scientist Louis Pasteur refused to allow his book on yeast and brewing to be read in Germany, he was mad at them for the 1870 war with France. It's his book - his rules. German beer doesn't seem to have suffered too much as a consequence (not sure what America's excuse is!)

That's not unreasonable - you don't own World of Warcraft you own a license to play it.

The distinction being made here is not between holding copyright and holding a license. It is between owning a copy and holding a license.

But this is why the concept of the software licence was developed. It is explicitly developed so that you don't take ownership of the item in the same way you take ownership of a DVD or printed book.

Holding copyright is not the same as owning an item. The parent comment is factually correct.

And yet, used game sales -- to specifically take on the parent's example -- are legal, much to the consternation of the game industry. The fact that they're legal is what prompted the development of online activation systems: to make an end-run around the resellers.

Whether they should be legal is a different and murkier question. And resale of digital music files is clearly pretty ridiculous, since you could just follow this plan for free stuff:

    1. Copy the file.
    2. Upload it to the reseller.
    3. Profit!

They definitely should be legal. Online activations should be forced to accept it, as well.

Especially when you consider that a lot of games go out of print and get impossible to find just months after release. Which is bad for someone like me who never pays attention to games that aren't already out, and may take years to get around to playing a game. Used games are often my only recourse.

not sure what America's excuse is!

Say what?

Since they presumably had access to Pasteur's book (even if it was in French) and so knew how to grow the correct yeast for beer - how did they manage to produce Budweiser and Miller ?

Even if you disliked the original comment, this one is trying to clarify a joke. Now a serious question - is humor discouraged on HN? Because it's not the first time I run into something like this.

Insightful Humor? No. Humor just for it's own sake? Often. Shallow, 'meme' or mock-wit humor? Pretty much every time.

The rule of thumb is: If it doesn't add to the discussion, better hold on to it.

Humour seems to track with sun position. When the sun is above GMT votes for humour go up, once it reaches GMT-5 to GMT-8 humour get's downvoted.

The answer to that would be the 18th Amendment.

Clever - so having failed to ban alcohol they just let market forces take their natural course and produce a beer that nobody would want to drink.

I think that in 100 years, we'll all look back at this time period of intellectual property hoarding as something akin to the dark ages.

This is why I wished EFF or an organization like that would participate in those hearings. They seem to take "piracy" for granted, and if you pirate/copy files without authorization, you're clearly a criminal. I think there needs to be a more in-depth debate about that, because I'm not so sure piracy should be a criminal act.

Just think about it. Why is piracy so hard to eliminate, if not impossible. Why does it grow in 10 other places when one place is eliminated. Could it be that it's a fundamental principle of the Internet, and what they really need to do is to adapt to this new reality, rather than keep wasting resources for decades to fight it, and create more draconian laws in the process that only end up serving other purposes?

There has been a lot of research on pirate markets, from illegal downloads to counterfeit designer clothes, and it's pretty well understood.

Pirate markets appear when the cost of a good in a market is way above the perceived value, and a pirated version can be produced for a fraction of the cost. Legit goods cost only money, but pirate goods instead cost time or uneasiness of breaking the law. Consumers then make cost-benefit analyses as to which version they want, and as long as enough consumers choose the pirated version, the pirate market is sustained.

The way to beat a pirate market is to simply treat it as a legit competitor and out-market it. iTunes music store is so incredibly successful, because it is out-marketing illegaly downloaded music. Netflix is so incredibly successful, because it is out-marketing illegaly downloaded movies. They simply provide cheaper and better service than the previous legal alternatives.

Unless the RIAA wins, in which case 100 years from now will be the dark ages.

> It seems to me that deleting the original file is hardly good enough.

Especially since iTunes will allow you to redownload content!

> and that's something we just have to accept and move on with.

You haven't said why.


It just seems hypocritical to me to demand that the RIAA and other old guard industries adapt their businesses to new technologies, and then sit here and complain we can't lend or resell digital copies the same way we can with physical ones.

It seems that the only way to enforce fair lending or reselling is with restrictive online DRM, and I'd rather have the technological freedom to use my files where and when I wish in return for a moral and legal obligation to not just hand other people's work out to everyone for free.

I should note that I am NOT one of those people who think that music should be free and artists should make it up with touring or with donations or whatever. Why? Because I like albums, and I don't like concerts that much. So, I'd (selfishly) much prefer a situation where artists are encouraged to record more and tour less, which honestly is not the situation with either the standard music contract NOR the apparent future of the web.

(Just to be clear, I'm not really anti-piracy. I'd probably own zero albums if it wasn't for Napster back in the day which let me try out all sorts of music and find what I like. I don't like the radio. Before Napster, I just didn't listen to music. I'm just not pro-piracy either.)

1. This service is ridiculous and I'm embarrassed that they raised nearly as much funding as we did for it. Who on earth didn't see this coming?

2. Deleting "the original" when it's so easy to have your own other copy somewhere doesn't do anything. How do they even begin to answer this concern?

3. How can the RIAA argue in one breath that you don't own their product, that it's just a license, and argue in court in another breath that they don't owe artists an increased royalty on licenses (vs purchases)? These guys do an awesome job of making sure everyone hates them. It's too bad that their interests are aligned with artists in some cases, because they only make it harder for reasonable people to have a leg to stand on.

2. The same could be said of CDs and DVDs. Especially if you follow up with the license bit. Basically, if you can sell your CD licensed music, why can't you sell your other digitally licence music? If both are dealing with licenses, and you can sell one, the argument is you can sell the other.

I agree, it's ridiculous, but I think it's that way mostly because of the RIAA's way of defining things.

If you can only sell the DVD but not the copy, then the original owner paid more for it, ends up with less value, and the new owner, if they wanted to sell it, would have the same issue. Further, you have to transfer a physical product, which at the prices of used DVDs makes very little sense and has a minor impact on the industry. Being able to sell a copy that costs nothing to make or ship is more damaging. It's not that they wish you couldn't sell your DVDs, too, but it's not as important a fight as digital copies.

I understand what you are saying, but understand in this case, I think they are having their own arguments used against them. So, while we might want to apply logic, we have to use the logic they've been using for years now. And, to be frank, that logic doesn't always make sense.

As time marches on, the RIAA is going to see their business dry up, not from customers, but from artists, who can now easily handle their own distribution. They might as well change their name now to the Music Marketing Association of America, because that's all they have to offer.

Perhaps they enforce the deletion by preventing you from restoring a copy of the song from a backup to iTunes. Though doesn't stop you playing the song on another device that is entirely independent of iTunes.

This distinction between license and ownership underscores the need both for open source software and also for expanding such models into other spheres. Here I am defining "ownership" as "economic ownership" namely the right to utilize a good in any way one wishes to (following Hilaire Belloc's definition of ownership). Here ownership of a copy is distinct from ownership of the ideas or expressions in the copy, and the question becomes what you own when you get a copy of a piece of software or a recording of music.

With a piece of software, what you own is typically restricted by a clickwrap agreement. You agree not to exceed your client access license ownership with server software for example. With music what you own is the right to listen to that music for your private enjoyment only. With software you get some limited economic ownership, but with music you only get non-economic ownership.

With open source software you get (nearly with the GPL and complete with the BSD license) full economic ownership. You can connect as many clients to the server software as you want. You can deploy it for customers. You can use the software in any way you wish to use it, and you can combine it with other goods to produce goods for resale. Only in this last area are there any limits to what is owned with open source software, and then only sometimes.

I don't believe that musicians right now know how to benefit entirely from creating entirely open content, but musicians could compete at the moment in part by offering additional ownership of their music: get my songs, play them in your store, display my videos publicly to an audience of 500 people or less per viewing, ensuring that people are buying not only entertainment but also that the music has value. The fact that it has value means it will be played more. The fact that it will be played more means it provides more advertising for live shows.

Can I burn an HD copy of a movie off my DVR via the analog hole and then sell it to someone?

Which part is illegal? Recording it? No. Burning it to a DVD? No. Owning it? No. But can I sell it? No. I think this paradox of ownership without being able to sell it will cause ReDigi to lose their case. Horrible situation for setting a bad legal precedent.

Let's not forget that the MPAA is a criminal organization whose members commit fraud every single day. I suspect the RIAA is the same. "Hollywood accounting" is a nice euphemism for a felony crime. I have no sympathy for unethical criminals who as standard business practice screw over producers, musicians, writers and actors. Piracy is justified.

The RIAA is, shock/horror, right in this case. First Sale Doctrine is not a free pass to make copies of digital media.

A friend of mine is the principal at SmartFlix, so I've had the opportunity to hear a lot of rubber-meets-the-road detail on first sale doctrine over the past few years.

Thing is, the RIAA has been arguing in court that the royalties they pay the artists for MP3s are based off physical sales, rather than license based sales.

They're playing both sides of the argument. Should artists get paid for downloads using the same rates they agreed to for physical media? Or should downloads be treated like licenses, and artists get paid according to that scale?

See also http://www.techdirt.com/articles/20111104/04202416631/fight-...

Fair enough. I'm not arguing that the RIAA aren't pushy to a fault, I'm just saying they happen to have a reasonable interpretation of legal precedent to back up their claim w.r.t. this particular online music service.

Also, the "sale" vs. "license" debate is a many-more-than-two sided thing. At some level, we're always talking about licenses...purchase of a work does not confer to me all of the rights enjoyed by the copyright owner, period. And "licensing" a song is really licensing very specific rights (and usually for some finite period).

...coherent but entirely skippable ranting below this line...

This "debate" will progress when we can get some common ground on the following:

1. What exactly is the consumer licensed to do, in what circumstances?

2. How should the customer be expected to know this, given the inertia of media consumption history, and the fact that consumers generally don't sign contracts when they buy things?

3. Even if we can agree on what consumers' rights are (which we haven't, for reasons that all sides should frankly be ashamed of), how should the law deal with the dual facts that:

a) fine-grained enforcement is technically impossible, and

b) large scale infringement is technically and economically trivial for exactly the same populations that comprise the viable market for commercial content?

It would be nice if we at least (the highly-technical / entrepreneurial / probably not-starving community) could start holding ourselves to a higher standard. We owe society some answers that are more sophisticated and productive than "the old business model is broken, so it's okay to pirate until someone launches [new service from which I can get everything I want, when I want it, at a price that's easily affordable]."

> We owe society some answers that are more sophisticated and productive than "the old business model is broken, so it's okay to pirate until someone launches [new service from which I can get everything I want, when I want it, at a price that's easily affordable]."

I agree but these are hard questions. I've thought hard about this and I decided that the only legally and morally clear option for buying music was to go back to buying CDs only (and ripping them). Which of course means I've not had any new music in months, as that's just a pain in the neck.

I don't think mine is a good solution* but cases like this make you wonder if rights to own, or the like (eg: listen to in perpetuity), digital music maybe non-existent.


* And yes this is just as reductive as "steal everything"- but I couldn’t find any solid ground in between.

This just in, RIAA claims you do not own the food on your table, you only license it for consumption.

(But really, would you be surprised? God help us if RIAA gets their hands on a patent for a wheat genome. It sounds ridiculous and sensationalist, but this is the RIAA.)

"This just in, RIAA claims you do not own the food on your table, you only license it for consumption."

Last I checked Monsanto wasn't an RIAA member.....

Seed companies do exactly this.

You buy their seed to grow wheat, you have a license to grow the wheat but you can't keep any of it to plant next year.

You have a license to use their wheat seeds but not use the copies the plant is making.

Yay Monsanto. Not only this, once you licence their seed, you are no longer able to use non-Monsanto seed.

This would be genetically engineered wheat?

No any wheat - otherwise any seed company would only ever make a single sale

I was surprised by the following:

The Guild voices some valid concerns, including the fear that publishers might try to prominently position loss leader books in the lending library in order to drive sales of other authors — but this sort of activity is already prohibited by existing clauses and is more an issue between publisher and author than anything that involves Amazon.

Why is such strategy (using a loss leader to sell other stuff) prohibited? What is the rationale?

this is good for overall volume, but if you're the author of the loss leader, you may get significantly less revenue

Ok. That makes sense... I was thinking about supermarkets/grocery stores when I originally asked the question, as they do this all the time. The situation is different when there's an author who'll complain.

More precisely, when Amazon sells a loss leader, they don't pay the author wholesale price. When a grocery sells milk cheap, they still pay full price to the dairy vendor.

it is easy. If you own you re-sell what you own. If you granted the rights under the license, you re-sell the rights granted under the license until the license states that the rights aren't transferrable. You agreed to the license. All this licenses and ToS are complete crap, yet until the law changed, the law seems to favor the crap. And by complacently agreeing to it, we help to proliferate it.

"If ReDigi’s service can accurately prevent users from accessing songs they’ve sold to the service, then the RIAA’s rights have been legally preserved."

Big if. How is ReDigi going to prevent users from downloading song backups from dropbox?

Good faith effort. It doesn't have to do it flawlessly.

Same thing applies to physical media. How can you guarantee that I don't have access to the music after I've sold a CD. And while you might argue that their is a difference between CD's and digital music, the RIAA doesn't see it the same way.

FTA: "the RIAA and MPAA have argued that purchasing a physical CD or DVD simply grants one a license to use the product rather than ownership of the content"

Basically, ripping a CD you own, and then selling the CD would mean your music files are technically illegal (according to the RIAA, that is, following on this logic).

So, ReDigi is extending that logic: if the physical medium isn't the key here, but rathe rather the license, and you can sell your license via selling the CD, then shouldn't you be able to do it without the CD?

At least, that's what I gather.

The physical medium is the key. The CD serves to identify the correct/original/authorized/licensed/whatever copy. If you can't identify the original, then actually you can't sell it (in the sense of it's not possible).

In the case of the physical CD example, yes. But in the case of iTunes, there is no physical medium to be the key.

Personally, I can't see this company working unless they can hook into iTune's servers and de-authorize the Apple account from having that song, and I don't foresee that happening at any point.

iTunes doesn’t use DRM anymore so deauthorizing won’t work.

It doesn't, but it's more the fact of "removing your license to re-download the item".

Given that this particular attempt at DRM could probably be defeated by right click+copy into the same directory before "selling" the track, deleting off the local machine does absolutely nothing.

> If you can't identify the original, then actually you can't sell it (in the sense of it's not possible).

But if I can identify the original file given to me by iTunes, in the same sense that I can identify the CD, why can't I sell that original? Because of what I may/can do?

To ask it in RIAA parlance: If something gives me a license, should I not be allowed to sell that something?

And if you would answer no, I'd ask why can't I sell the CD?

Can possession of the CD really be taken to identify the owner of clear title to the license? What about when someone breaks into my house and steals my CD collection - they can steal the physical media, but the license is intangible - they can't steal that, so I should still own it.

> Good faith effort. It doesn't have to do it flawlessly.

From what I gather from TFA, they are nowhere near what the industry could consider a good faith effort. They basically need some way to invalidate the original file (and any illegitimate copies of it) while keeping the legitimate copy valid.

The only way to do that is to have the software ask the permission of a central server to be allowed to play a certain music file. Scary stuff.

Remembering DivX and how that turned out....

Yea, the fundamental flaws of artificial scarcity.

Or even just using ReDigi on a machine that isn't their main iTunes machine? It's easy enough to copy your library over and just never sync to it.

Yet another site which has a totally crappy and broken mobile interface, with no option to revert to the regular interface. :(

There is a settings cog in the bottom left corner. Selecting "view desktop version" simply reloads the "optimised" mobile version which looks nice but is utterly unusable and breaks the web.

I wish OnSwipe had a per-device opt-out that worked.

Completely what I thought! I would if these jackass developers who built the site actually tested it on a real device. Never going back to that publication!

So moving my iTunes library within my computer or even restoring a backup would mean thousands of unauthorized copies of that music. The RIAA needs to update their practices.

"For years, the RIAA and MPAA have argued that purchasing a physical CD or DVD simply grants one a license ... then the RIAA’s rights have been legally preserved."

Or the RIAA are wrong to make such an argument? They clearly heard the first sale doctrine, and made up words to make it not apply to them. Isn't this ever brought up in court? Or do the RIAA not like, and therefore not partake in, legal proceedings?

Unfortunately I feel ReDigi is most in the wrong here and not necessarily the RIAA. All someone has to do is go into their iTunes and redownload the file they previously purchased, or make a copy before making it available to ReDigi. It may have been meant to be a legal way of selling used songs, but I feel that is just not possible in a digital world.


The cliched statement is that digital piracy isn't stealing because you aren't depriving someone else of the artifact. It works both ways: you can't sell digital artifacts because you aren't depriving yourself of the original.

I was really intrigued by the section on Amazon in this article, in that they don't bother with licensing and go directly to purchasing the book so they can lend it. I think that Amazon's practice in this regard is much more significant than ReDigi's activity as it could spell out how future libraries function with regard to ebooks.

Local libraries are already using Amazon's system to lend e-books, and it's actually pretty cool. If all the copies are 'checked out,' you go on a waiting list. When a copy becomes available, you're notified, and you have a timeout window wherein you have to decide whether to a) check out the book, or b) lose your spot in the queue so the next reader gets a crack at it.

Pretty well thought-out.

while there is nothing that prevents you from making copies. there can be a certificate of original purchase issued to you and registered/signed to a specific user's public key in a cloud database.

upon sale of the electronic item, you can re-sign/update the cloud cert with the new owner's key. so if a it came to proving that you own the music, you can reference a cloud database and decrypt the signature.

it's really the only way forward that comes to mind without being invasive but still allowing enforcement.

No, I (obviously) can't download a car.

Apparently, I can't send a file to someone else and remove it from my iPod, Galaxy S, Blackberry, office and home pc either.

Sometimes the word "can't" is used as shorthand for "with a probability approaching zero".

You never owned your iTunes music purchases - you are licensing them. Take a gander at the EULA you clicked through without looking at.

So I can sell that license under the first-sale-doctrine right?

I sell my license to perform this song on a personal media player and thereby promise that I will no longer perform the song on a personal media player that I hold in my possession.

How is Amazon going to prove that at no time did it's users lend more books than Amazon bought from the publishers?

Amazon has a list of all the books in your library. It is not inconceivable that Amazon could provide a list of what books its users are currently reading/have in their library (including books they are lending) and providing such a list to the publishers/guild.

Is that proof enough? Who knows. Is it easily faked? Yes. But that is always going to be the case with anything digital. You either choose to believe them or you don't.

How is ReDigi fencing the acquired music files? Who is buying second hand digital music?

The RIAA are hypocrites of course as they have purposefully crafted an inconsistent legal position regarding the rights of consumers and musicians (with the intended effect being an answer of 'none'), however ReDigi's business model is fucking stupid. Taken to the extreme, you could use this to build a streaming service whereby the end-user only owns access to the content at the moment they are listening to it. I.e. you transfer the license to them, deduct some token amount from their account, stream the content, then refund it minus a percentage after the user is finished and no longer requires the license. That this might be technically legal under the current copyright scheme only underscores how ludicrous the whole game has become. Moral? Don't participate in it. Don't buy content if any of the money will make its way back to the RIAA, or the MPAA for that matter, as they are the ones fucking everything up and standing in the way of progress in the first place.

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