Cross-posted from PrawfsBlawg

For now, at least, ReDigi lives. Judge Sullivan denied the preliminary injunction, but according to the transcript, on irreparable harm grounds rather than a lack of likelihood of success on the merits. The case is set for rapid progress towards trial, quite possibly on stipulated facts.

I’d like to take up one of the central questions in the case: first sale. Whether you think ReDigi ought to win certainly turns on your view of what first sale is for. So too, may the legal merits. How you interpret statutory text like “owner” or “sell” may depend on on your theory of what kinds of transfers Congress meant to protect. And even if ReDigi’s particular form of transfer falls outside of the text of first sale itself, the arguments for and against fair use can draw on first sale principles. Here, then, are some competing theories:

• Conservation of copies: Copyright is fundamentally copy-right: the ability to prevent unauthorized copying. Practices that don’t increase the total number of copies in existence don’t fundamentally threaten the copyright owner’s core interests. First sale blesses one of those practices: moving a copy for which the copyright owner has already been paid from one set of hands to another. On this theory, ReDigi is okay because it forces sellers to delete their copy of the music, thereby keeping the number of extant copies constant.

• Freedom of alienation: First sale protects the rights of owners of personal property against copyright claims that might interfere with their right to use their property as they wish. This idea is sometimes described in terms of “servitudes on chattels” or “exhaustion” of the copyright owner’s rights. We could also think of it as a negotiability regime promoting free transferability of personal property, given the information and transaction costs involved in allowing third-party copyright claims. On this theory, ReDigi is in trouble because it deals in information, rather than in tangible objects.

• Copyright balancing: First sale is one of a cluster of doctrines that shape the level of control copyright owners have over the market (economic and cultural) for their works. If that balance changes over time, the doctrines should be recalibrated to restore it. Since the reproduction right has expanded to cover all sorts of computer-based uses such as loading a file into memory, the first sale defense should expand to maintain the same rough level of control. On this theory, ReDigi should win, because it would preserve roughly the same levels of freedom for users and control for owners as they had in an analog era.

• Copyright balancing: Or wait … if the goal is balancing, then perhaps ReDigi should lose. First sale used to be practically restricted by the facts that physical copies wear out and that exchanging physical objects takes time and money. ReDigi would blow those practical limits away, disrupting the first sale balance in the direction of too little control for copyright owners. In the face of rampant illegal file-sharing, why should a court, in effect, legalize the process by allowing ReDigi to serve as a super-low-friction intermediary?

What I love about this case is that it pushes and pulls our intuitions about copyright in so many different directions. It brings up fundamental questions not just about unsettled corners of doctrine, but also about what copyright is for. It offers grist for every mill, food for every kind of thought.

Cross-posted from PrawfsBlawg

On Monday, Judge Sullivan of the Southern District of New York will hear argument on a preliminary injunction motion in Capitol Records v. ReDigi, a copyright case that could be one of the sleeper hits of the season. ReDigi is engaged in the seemingly oxymoronic business of “pre-owned digital music” sales: it lets its customers sell their music files to each other. Capitol Records, unamused, thinks the whole thing is blatantly infringing and wants it shut down, NOW.

There are oodles of meaty copyright issues in the case — including many that one would not think would still be unresolved at this late date. ReDigi is arguing that what it’s doing is protected by first sale: just as with physical CDs, resale of legally purchased copies is legal. Capitol’s counter is that no physical “copy” changes hands when a ReDigi user uploads a file and another user downloads it. This disagreement cuts to the heart of what first sale means and is for in this digital age. ReDigi is also making a quiver’s worth of arguments about fair use (when users upload files that they then stream back to themselves), public performance (too painfuly technical to get into on a general-interest blog), and the responsibility of intermediaries for infringements initiated by users.

I’d like to dwell briefly on one particular argument that ReDigi is making: that what it is doing is fully protected under section 117 of the Copyright Act. That rarely-used section says it’s not an infringement to make a copy of a “computer program” as “an essential step in the utilization of the computer program.” In ReDigi’s view, the “mp3” files that its users download from iTunes and then sell through ReDigi are “computer programs” that qualify for this defense. Capitol responds that in the ontology of the Copyright Act, MP3s are data (“sound recordings,” to be precise), not programs.

I winced when I read these portions of the briefs. In the first place, none of the files being transferred through ReDigi are MP3s. ReDigi only works with files downloaded from the iTunes Store, and the only format that iTunes sells in is AAC (Advanced Audio Coding), not MP3. It’s a small detail, but the parties’ agreement to a false “fact” virtually guarantees that their error will be enshrined in a judicial opinion, leading future lawyers and courts to think that any digital music file is an “MP3.”

Worse still, the distinction that divides ReDigi and Capitol — between programs and data — is untenable. Even before there were actual computers, Alan Turing proved that there is no difference between program and data. In a brilliant 1936 paper, he showed that any computer program can be treated as the data input to another program. We could think of an MP3 as a bunch of “data” that is used as an input to a music player. Or we could think of the MP3 as a “program” that, when run correctly, produces sound as an output. Both views are correct — which is to say, that to the extent that the Copyright Act distinguishes a “program” from any other information stored in a computer, it rests on a distinction that collapses if you push too hard on it. Whether ReDigi should be able to use this “essential step” defense, therefore, has to rest on a policy judgment that cannot be derived solely from the technical facts of what AAC files are and how they work. But again, since the parties agree that there is a technical distinction and that it matters, we can only hope that the court realizes they’re both blowing smoke.

This month, I’m guest-blogging at PrawfsBlawg. I’ll be cross-posting many of my Prawfs posts here, as well.

My friend Dave is a game designer in Seattle. He and his friends at Spry Fox made an unusually cute and clever game called Triple Town. It’s in the Bejeweled tradition of “match-three” games: put three of the same kind of thing together and they vanish in a burst of points. The twist is that in Triple Town, matching three pieces of grass creates a bush; matching three bushes creates a tree … and so on up to floating castles. It adds unusual depth to the gameplay, which requires a combination of intuitive spatial reasoning and long-term strategy. And then there are the bears, the ferocious but adorable bears. It’s a good game.

Now for the law. Spry Fox is suing a competing game company, 6waves Lolapps, for shamelessly ripping off Triple Town with its own Yeti Town. And it really is a shameless ripoff: even if the screenshots and list of similarities in the complaint aren’t convincing, take it from me. I’ve played them both, and the only difference is that while Triple Town has cute graphics and plays smoothly, Yeti Town has clunky graphics and plays like a wheelbarrow with a dented wheel.

I’d like to come back to the legal merits of the case in a subsequent post. (Or perhaps Bruce Boyden or Greg Lastowka will beat me to it.) For now, I’m going to offer a few thoughts about the policy problems video games raise for intellectual property law. Games have been, if not quite a “negative space” where formal IP protection is unavailable, then perhaps closer to zero than high-IP media like movies and music. They live somewhere ambiguous on the spectrum between “aesthetic” and “functional”: we play them for fun, but they’re governed by deterministic rules. Copyright claims are sometimes asserted based on the way a game looks and sounds, but only rarely on the way it plays. That leads to two effects, both of which I think are generally good for gamers and gamemakers.

On the one hand, it’s well established that literal copying of a game’s program is copyright infringement. This protects the market for making and selling games against blatant piracy. Without that, we likely wouldn’t have “AAA” titles (like the Grand Theft Auto series), which have Hollywood-scale budgets and sales that put Hollywood to shame. Video games have become a major medium of expression, and it would be hard to say we should subsidize sculpture and music with copyright, but not video games. Spry Fox would have much bigger problems with no copyright at all.

On the other hand, the weak or nonexistent protection for gameplay mechanics means that innovations in gameplay filter through the industry remarkably quickly. Even as the big developers of AAA titles are (mostly) focusing on delivering more of the same with a high level of polish, there’s a remarkable, freewheeling indie gaming scene of stunning creativity. (For some random glimpses into it, see, e.g. Rock, Paper, Shotgun, Auntie Pixelante, and the Independent Games Festival.) If someone has a clever new idea for a way to do something cute with jumping, for example, it’s a good bet that other designers will quickly find a way to do something, yes, transformative, with the new jumping mechanic. Spry Fox benefited immeasurably from a decade’s worth of previous experiments in match-three games.

The hard part is the ground in between, and here be knockoffs. Without a good way to measure nonliteral similarities between games, the industry has developed a dysfunctional culture of copycattery. Zynga (the creator of Farmville and Mafia Wars) isn’t just known for its exploitative treatment of players or its exploitative treatment of employees, but also for its imitation-based business model. Game developers who sell through Apple’s iOS App Store are regularly subjected to the attack of the clones. In Spry Fox’s case, at least, it’s easy to tell the classic copyright story. 6waves is reaping where it has not sown, and if Triple Town flops on the iPhone because Yeti Town eats its lunch, at some point Dave and his colleagues won’t be able to afford to spend their time writing games any more.

This is something I’ve been thinking about the copyright tradeoff recently. One way of describing copyright’s utilitarian function is that it provides “incentives to produce creative works.” That summons up an image of crassly commercial authors who scribble for a paycheck. In contrast, we sometimes expect that self-motivated authors, who write for the pure fun of it, will thrive best if copyright takes its boot off their necks. But a better picture, I think, is that there are plenty of authors who are motivated both by their desire to be creative and also by their desire not to be homeless. The extrinsic motivations of a copyright-supported business model provide an “incentive,” to be sure, but that incentive takes the form of allowing them to indulge their intrinsic motivations to be creative. In broad outline, at least, that’s how we got Triple Town.

I’m not sure where the right place to draw the lines for copyright in video games is. I’m not sure that redrawing the lines wouldn’t make things worse for the Daves of the world: giving them more greater rights against the 6waves might leave them open to lawsuits from the Zyngas. But I think Triple Town’s story captures, in miniature, some of the complexities of modern copyright policy.