International Law

A really silly idea: a used MP3 store

The Tech Law Prof Blog is quite rightly dismissive of the idea of a used MP3 store:

As ham fisted as the RIAA and labels can be about dealing with piracy issues, there are times when someone comes up with an idea to sell music that is so bad, it makes the labels' position look good.  Enter Bopaboo, a used online MP3 store.  They're banking (literally) on the concept that the first sale doctrine applies to music files.  Here's how it works:  A seller uploads unprotected mp3 files to Bopaboo for sale.  The user agreement requires the uploader to delete any copies on the hard drive.  Bopaboo keeps 20% of the sale price and license holders get compensated.  A tracking system prevents a seller from uploading the same file even if it has been altered. 

OK, what's wrong with this picture?  Though the labels have been forced by economics and customer demand to sell versions of songs in an unprotected format, their fear of files being copies infinitely is still valid.  Bopaboo merely legitimizes it as valid files may have come from CDs, pirate networks, anywhere.  There is nothing that enforces the service terms that the source files be deleted.  And copied.  Again and again.  Sure that can happen anyway.  But for someone to think they can make money off a market of duplicated files as a legitimate business is nuts.  Certainly when someone sells a used CD under the first sale doctrine they lose possession of the disc.  Technology (if not the law) allows the seller to create a copy of that disc.  So what's the difference?  Well, no respectable used CD outlet will traffic in CD-Rs.  It's virtually certain death by lawsuit.  That constraint doesn't exist online in a used file market.  It's naive to base a business model on user honesty given the level of piracy that exists.  I agree that labels have to swallow hard and allow user freedom when they sell music. Bopaboo, however, is not going to cut it.

Read it here.

Full post as published by Freedom to Differ on December 14, 2008 (boomark / email).