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No (first) sale for Amazon

The copyright world was buzzing today over reports of a new patent granted to Amazon for the design of an “electronic marketplace” in used digital goods. Under the system described in U.S. Patent No. 8,364,595, “When  the user no longer desires to retain the right to access the now-used digital content, the user may move the used digital content to another user’s personalized data store when permissible and the used digital content is deleted from the originating user’s personalized data store.”

That set off speculation that Amazon is preparing to challenge copyright owners on the sticky and contentious question of resale rights under the first sale doctrine for digital movies, music, ebooks and other types of content. It also seemed to raise the prospect that Amazon would use its patent to take on ReDigi, a service that enables iTunes users to resell their digital music tracks via a cloud-based marketplace and is currently fighting a copyright infringement lawsuit brought against it by EMI.

ReDigi, in fact, even issued a statement dismissing any threat to it from Amazon:

As ReDigi understands Amazon’s patent, it is for a marketplace that employs a seller to buyer “copy and delete” mechanism, in which a user sells a “copy” of a digital good to another user while both the buyer and seller simultaneously own the copy (even if only for an instant in time), and then supposedly the seller’s copy is subsequently “deleted.” ReDigi takes no position on the legality of this technique under copyright law, but simply notes that it has been central to the music and publishing industries’ skepticism and opposition to a “used” digital marketplace, and that the ReDigi Marketplace does not use this technique.

They needn’t have bothered. To my non-lawyer eyes, at least, what Amazon is describing in the patent is nothing like the open-ended resale market envisioned by ReDigi. Nor does it appear to be making any sort of broad assertion of rights under first sale. It’s more like a very elaborate first-sale workaround.

Instead, what Amazon seems to be envisioning is a carefully defined, DRM-controlled ecosystem, with a limited ability to transfer digital files among registered users, managed by Amazon and operating under license from rights owners.  I’ll have more in an upcoming Weekly Update, but the competitive target here is Apple, not ReDigi. This is about making Amazon-world more fun to play in than Apple-world or Google-world, not the first sale doctrine.