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Phonorecords: A Matter Where Matter Still Matters

 

Judge Sullivan’s decision in the recent Capitol Records versus ReDigi ruling allows for what we all know is perfectly legal; exchange and personal uses of original physical media, like the original commercial CDs that Murfie stores for an owner, providing access only to the owner.

Beyond that, the ruling was a bit of a letdown. In this modern era of digital audio delivered across high speed networks, we all wanted a profound decision about the future of ownership of our media.  We wanted a ruling that clearly let us know whether our iTunes downloads were albums we really owned versus data we’ve merely licensed. Instead, the case came down to the copying of… phonorecords. Phonorecords?

As defined by copyright law, phonorecords are the “material objects” in which the music is fixed. When the law was created in 1976, this meant vinyl records, eight-track tapes, and cassettes. The various music formats which followed over the years were also very clearly material objects. In the ReDigi case, the judge takes the definition of phonorecord to an entirely new level that now includes the physical section of magnetic bits stored on our harddrives in the case of iTunes downloads. By contrast, an album that is sold or accessed on Murfie’s platform simply is a CD phonorecord, stored for its owner’s convenience in Murfie’s disc vault.

And, this is where ReDigi ran into trouble. The instant that original, licensed download of Thriller was saved on our harddrive, that tiny section of bits on our physical drive became the material object associated with that phonorecord. Short of teleportation, it didn’t matter how fancy ReDigi’s system of transferring data was because, in the end, ownership of the concrete physical thing wasn’t conveyed to the buyer. The judge ruled that the laws of physics made it impossible to transfer a phonorecord (i.e. a material object) across a network in a manner that didn’t involve making a copy.

Extending the definition of a phonorecord to account for bits on a drive leaves open some interesting questions. The judge ruled that the first sale doctrine “still protects a lawful owner’s sale of her ‘particular’ phonorecord, be it a computer hard disk, iPod, or other memory device onto which the file was originally downloaded.” This seems to imply that we’re able to sell a harddrive containing a bundle of original mp3 downloads. But what about those mp3s that were transferred over to this harddrive when we upgraded it to a larger size? Or, even those files that were copied over to a new directory (file system specifics aside)?

In tying the case back to elements of copyright in place long before the rise of digital audio, the judge took a conservative approach and declined an opportunity to chart a path for first sale in the digital realm. He cited as much in his decision: “Congress has the constitutional authority and the institutional ability to accommodate fully the varied permutations of competing interests that are inevitably implicated by such new technology.”

In other words, congress needs to update our laws if the original copy of your iTunes download on your harddrive is going to be considered something more than a phonorecord that’s stuck with you (or whomever has your computer). So, for those of us waiting around for a digital first sale doctrine, it could be a while.

In the meantime, Murfie already provides a path forward for music ownership in a digital world. We’ll continue to maximize the value of your music within time-tested laws, but we also applaud any work entrepreneurs, legislators, and courts do to modernize those laws to reflect how our systems for transacting, storing, and accessing music, books, and movies that we own actually work. These advances are good for all parties and can hardly fail to lead to many new opportunities for creators, the various supporting media businesses, and fans alike.

Please drop in and check us out.

Last updated: 04/02/2013 at 4:22pm; a draft was posted by mistake

Published by

Matt Younkle

Murfie, Inc. Cofounder & CEO

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