A Rose by Any Other Name

Paul Venuti's picture

Senior Software Architect

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A Rose by Any Other Name

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A few days ago, I was reminded me of a court case I'd heard about back in April, involving a company called ReDigi. The company bills itself as "your favorite used record store, but for digital music files". [1] At issue in the case was whether ReDigi's raison d'etre – allowing people to sell their digital assets – was even legal.

In one of those absurdities that can only exist in the law, the judge ruled that the act of downloading an MP3 from ReDigi's servers to your computer constitutes the creation of a new "phonorecord" (where do they get these words), which is a violation of the first sale doctrine, meaning that it can't legally be sold. If no copy were made, then (presumably) the sale would be legal.

Enter the cloud:

They also say they've created new technology, "ReDigi 2.0," to comply with the ruling. With the new technology, ReDigi customers who buy new MP3's will have the MP3s sent directly to ReDigi's servers in the cloud. [2]

That certainly seems to resolve the legal fiction of there being One Phonorecord to Rule Them All (OPTRTA). But by satisfying that fiction, all we've done is raised a number of troubling new questions. For instance: if you buy some MP3s from ReDigi and they live on their servers, then who really owns them? What if I want to resell the MP3s to somebody else, but I don't like ReDigi's rates or options? Am I then free to download them to my computer and upload to another service? But that would violate the prime directive of OPTRTA, so … am I locked in?

While all of these questions involve a hypothetical future, they say nothing of existent questions. In stark contrast to the idea of there being One Phonorecord to Rule Them All, there is the music service emusic.com, to which I subscribe. A few days ago, I downloaded a DRM-free copy of *Wise Up*, an album by Elvis Costello and The Roots. I downloaded the files to my computer; there they sit. But what exactly did emusic.com sell me? Clearly, it's not a license to the music; if it were, then it seems I wouldn't be able to download the files without any DRM. And yet, whether I can legally sell them – or give them away – is unclear. Can you own something that cannot be sold?

The larger trend here, of course, is the movement toward what people like to call "the sharing economy", but what I feel is better termed "the subscription economy". While there are many "sharing" services like AirBnb and RelayRides, which do involve real people renting out their physical assets, I see a lot more activity with services like Rdio and Oyster (which is like Netflix for ebooks), where things that people traditionally purchased in physical form are rented on a subscription basis in digital form. I wonder whether the driver behind this shift is nothing more than convenience, or whether people are beginning to see ownership itself as passé.

Whatever the reason, though, there is a real danger here. It lies in accepting what copyright holders like the RIAA and MPAA would have you believe, which is that, while nobody disputes that you can own a book, "you can't own ones and zeroes". Somehow, they argue, an ebook is not a book; an MP3 is not an album.

Which brings me back to the title of this post. When Juliet said that "a rose by any other name would smell as sweet", she was affirming her belief in the immutability of "rose-ness":

What's in a name? that which we call a rose
By any other name would smell as sweet;
So Romeo would, were he not Romeo call'd,
Retain that dear perfection which he owes
Without that title. Romeo, doff thy name,
And for that name which is no part of thee
Take all myself.
[3]

What, then, makes a book, a book? Is it the paper it's printed on, the ink used to print the words, or the font used to display them? No. It is the words themselves. An ebook is a book, something that Juliet figured out 500 years ago. Don't let anybody tell you any differently.