A Legal Blog by Aaron | Sanders, PLLC


Space Amazons, Space Marines and the Non-Existant Trademark Takedown Notification

Caught Between the Heartless and the Cowardly, Does an Indie Author Stand a Chance?

Update (Feb. 8, 2013): It appears that Spots the Space Marine is available once again from Amazon’s Kindle store, as of this morning. I don’t have any details about the change, e.g., whether it’s permanent, who relented (Amazon or Games Workshop), or why. (Since this post didn’t go up until last night, we can feel confident that this post had nothing to do with it!)

Further Update (Feb. 14, 2013): It appears Amazon voluntarily put the back up. Apparently, the EFF asked Amazon to, Amazon took an actual look at the notice, gagged, reached the same conclusion outlined below, and put the book back up. The EFF’s report paints Amazon as somehow so overwhelmed with notifications that they can’t spot (as it were) an obvious stinker like this. But taking something down like this isn’t being “neutral.” It’s being a tool (in the old sense of the word). EFF is correct, however, to identify providers like Amazon as the “weak link” in the chain of free speech.

Further Update Cont’d: For its part, Games Workshop claimed that it “had no choice” but to cause the removal of Spots the…

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Music Industry v. ReDigi: Cute or Clever?

Is ReDigi a Marketplace or a Music Locker?

I am compelled to blog about ReDigi one more time because, at long last, we actually know how ReDigi operates. And it’s not *quite* how ReDigi says it works on its FAQ. It’s actually far more clever and elegant–at least, legally speaking. This means, among other things, that parts of my previous posts about ReDigi are no longer completely accurate* (because they were based on the ReDigi FAQ and some other public statements by ReDigi). At a minimum, I need to clear that up. But also, ReDigi’s legal theory is worth an additional blog post.

*Among other things, the whole “Do Star Trek replicators infringe copyright” thing was unnecessary, as it turns out. As you’ll see, ReDigi does not destroy the original at the same time it creates the copy–a technological feat that would be remarkable but not impossible. Still, it’s an interesting thought experiment into the nature of the reproduction right, no?

ReDigi ReCap

To recap a bit about ReDigi: it provides an online marketplace for the re-sale of used audio files. It has one very important limitation: only songs you purchased online were eligible–thus, you can’t sell songs you ripped off…

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ReDigi Finale: Comparing Apples to Amazons (Part 20 in Our Online Music Services Series)

And Other Loose Ends.

This is going to be (I hope) the last post about the ReDigi situation, at least for a while. I’ll admit I got distracted by the RIAA’s little missive to ReDigi. I want to sum up and wrap up. First, the summing:

The Three Legal Obstacles to a Digital First-Sale Right

Looking over the five (!) previous posts about ReDigi, we see three obstacles to its legality:

Do the consumers who wish to sell their digital singles actually own, or merely license, the music files? That’s what Vernor helps us answer, as discussed here.
Is the First-Sale Doctrine limited to the same physical item that was the subject of the “first sale”? I discuss this question here and here.
By what right can ReDigi make the temporary, intermediate copies necessary to transfer the song file? I discuss this issue here and here.

So. There. Now, let’s tie up a few loose ends.

What About Amazon?

When I first discussed whether ReDigi’s system could comply with Vernor (to answer the question of whether the potential sellers “own” the digital downloads), I focused exclusively on the iTunes Store license agreement. I did so because (1) iTunes by far the most popular source of legal digital downloads,…

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Music-Locker Services: DMCA Protection and the “Single Master” (Part 9 of our Online Music Services Series)

What We Did Learn (Sort of) from the MP3Tunes Decision

In our last post, we looked at what the MP3Tunes decision didn’t tell us–that it didn’t put the music industry’s best argument to the test.  We looked at the contours of this “nuclear option,” including the elephant-in-the-room possibility that the music industry could once again go after individual consumers.  In this post, we’ll look at what the MP3Tunes decision did tell us–sort of–about the legality of music-locker services.

DMCA Safe-Harbor Protection Redux

As with Grooveshark, music-locker services have two ends.  In one end, the user uploads song files.*  Out the other end, the service “streams”** the song files to the user’s various devices.  Unlike Grooveshark, however,, the subscribers can enjoy only their own music (whereas Grooveshark users could enjoy everyone else’s music, too).  This might (or might not) make a big legal difference.

*  Apple’s service will have a major difference.  With Apple’s “Match” service, if you purchased your music through Apple’s iTunes store, you won’t need to upload the song file at all–you can “stream” Apple’s own copy of the song file.  Apple has obtained licenses from the rights holders to do this.

**  I put stream in quotation…

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Music-Locker Services: Is in the Cloud in the Cards? (Part 8 of Our Online Music Services Series)

What the MP3Tunes Decision Tells Us About Music-Locker Services

(I know I said that our next posts in our Online Music Service Series would be about Pandora and Turntable.fm, but the recent decision in the MP3Tunes case has inspired me to look at the Amazon, Google and Apple music-locker services, instead.  We’ll use the MP3Tunes decision as a spring-board for discussing music-locker services.  We’ll get to Pandora and Turntable.fm next week.)

You might have heard about the decision handed down earlier this week in Capitol Records, Inc. v. MP3Tunes, LLC.  You might especially have heard that the decision is “good news” for “music-locker” services like Amazon’s and Google’s–and, by extension, that Apple was foolish to obtain licenses.  You might even have heard that “music-locker” services are now definitely 100% legal.

The decision certainly wasn’t bad news for Amazon and Google.  We have additional confirmation that providers of music-locker services are not ineligible for DMCA safe-harbor protection.  Which we all figured was the case.  The most we can say is that Amazon has gone from about 90% certain, to about 92% certain, that the mere fact that its music lockers are likely to be host to infringing content won’t, by itself, deprive Amazon…

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