December 11th, 2008
Bopaboo may feel like eBay but will end up looking like original Napster.
A startup called Bopaboo surely has the lawyers at the Recording Industry Association of America putting in some overtime.
Bopaboo has launched a service that has created - get this - an eBay-like marketplace for “used” digital music files. That’s right. If you’re tired of your old mp3s, you can list them for sale on Bopaboo, which will split the profits with you. For physical items such as books, CDs and DVDs, there’s a first-sale law that allows you to resell the item without permission from the copyright holder. But, in the digital world, you’re not really “selling” your mp3 file, are you? You’re actually selling a copy of the mp3 file - because uploading it doesn’t really take it off of your hard drive.
How on Earth will Bopaboo convince the RIAA’s lawyers that this is legal?
My guess is that they won’t be able to. According to ipwatchdog.com, the first-sale doctrine that there can be no copying involved. Because the mp3s here are, in fact, copied during the upload, it seems pretty clear. I suspect this service will be hit with an injunction and come to a screeching halt faster than the original Napster. But if it can hang on long enough to be have its day in court, Bopaboo could force a legal decision as it relates to the re-selling of non-physical items such as digital music.
At some point, a collection of thousands of digital music files will have some sort of value. I know if I came across someone selling a USB drive with 1,000 songs on it, I might be tempted to dig into my wallet. (Note to RIAA: I said “tempted.”) But I’d be buying “something,” right? The drive has a value - or does it? Does the value, in this case, lie in the drive’s contents? Hmmm. Sounds like the courts will need to bring some definition to the re-sale doctrine. Currently, it assumes that, once something is sold, the seller no longer has it in his possession.
In a CNET report, Fred von Lohmann, senior staff attorney for the Electronic Frontier Foundation, called Bopaboo’s argument that digital files carry the same first-sale rights as physical items like CDs shows some potential weaknesses but is believed to be untested in court. Bopaboo might not flourish under legal pressures but could force the matter into court for definition of what could be an important issue in the future. In the CNET piece, von Lohmann said:
We shouldn’t lose our first-sale rights just because the second-hand stores involved are online. Up to now, there hasn’t been a huge opportunity for people to spend large amounts of money on digital music, but as time goes on some music fans will have thousands of dollars invested in their digital libraries or audio-book collections. It would be a big change if you weren’t allowed to sell them.
Bopaboo, a free service, is still in private beta. To request an invitation, visit the site’s registration page.
Sam Diaz is a senior editor at ZDNet. See his full profile and disclosure of his industry affiliations.
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