ReDigi, Digital First Sale … and Star Trek

By James Grimmelmann

Posted on April 24, 2013


My latest column for Publishers Weekly is up. In it, I look at the ReDigi decision holding that an online marketplace for used iTunes music files violates copyright law. The judge dropped a Star Trek reference in a footnote, which I use as the starting point for my riff on first sale.

The Copyright Act was drafted with two scenarios in mind: one, we could call the “transporter” or the “post office,” where someone takes a book that’s here and moves it over there, out of one person’s possession and into another’s. Copyright calls this a “distribution,” and the first sale defense applies to it. The total number of copies is unchanged: there was one before, and there’s one after.

The other offline scenario, which we can call the “replicator” or the “printing press,” takes an old copy of a book and makes a new copy in the same place. Copyright calls this a “reproduction,” and it’s not subject to first sale. The total number of copies increases: there was one before, and there are two after.

But online, a download is a bizarre hybrid of the two. There’s an old copy here on my computer, and once I send you the bits, there’s also a new copy there on your computer. The Internet therefore is something of a “transporticator” that creates a perfect replica of Kirk down on the planet, while also leaving the original Kirk free to roam the Enterprise.

It gets even weirder from there, including guest appearances by Derek Parfit and Evil Spock.

The preceding is re-published on TAP with permission by its author, Professor James Grimmelmann. ReDigi, Digital First Sale … and Star Trek was originally published April 3, 2013 on The Laboratorium. The Laboratorium publishes under the Creative Commons License.



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