III. Storing Digital Files on a Hard Drive Is Fixation Capable of Being Moved Without Being ReproducedThroughout its briefing of the case, ReDigi stressed the importance of understanding its technology to understanding its defense that it was not reproducing digital music files. Even while dealing with the sort of generalities inherent in analyses of proprietary processes, an argument can still be made that ReDigi is not infringing the copyright owner’s reproduction right without knowing the details of the software.  Although sound quality improved drastically with compact disc (CD) technology, the process of storing information on CDs remained very similar to that used with vinyl discs. On CDs, audio waveforms from vocals and musical instruments are converted into binary digits through a process of sampling (or digitizing) the waveform at intervals known as the sampling period. Each sample of the audio waveform creates a series of binary digits based on the waveforms’ amplitudes. Instead of stamping grooves into vinyl, CDs are stamped with pits to differentiate between a “1” bit and a “0” bit of the digitized sequence. Figure 1b shows those pits as viewed from the topside of the stamped layer. A polycarbonate plastic encasing surrounds the CDs stamped layer for protection. As the disc spins, a laser (rather than a needle) changes its radial distance from the center of the disc to read the particular physical changes in the CD. When the laser hits a flat part of the CD, it reflects directly into a detector. When the laser hits a pit, it scatters, reducing the intensity of the beam at the detector.  The difference in the detected intensity stemming from the physical changes of the CD creates the bit pattern read by the CD drive. Because there is no conversion from mechanical movement to electronic signals, the noise levels are reduced and the sound quality remains clear. Apparent from this description of vinyl records and CDs is the fact that the sound recordings are physically sculpted into such phonorecords. Understood in this manner, the fixation that occurs in vinyl records and CDs epitomizes the prototypical fixation of phonorecords contemplated by the House of Representatives when they passed the Copyright Act. This conception of fixation also helps to explain the court’s adherence to the proposition that “it is the creation of a new material object and not an additional material object that defines the reproduction right.” Because grooves and pits are physically sculpted as material objects into the recording layer of the disc, any new material object fixed with the same sound recording will necessarily be an additional material object. That is, the material fixation of the embedded sculpture is intimately tied to the recording layer. In this scenario, it is impossible to imagine moving the material object (i.e., the grooves or pits as a collection) without moving the recording layer of the vinyl disc or the CD as well. However, the notion of fixation changes when vinyl discs and CDs are replaced by hard drives composed of electric and magnetic fields.  So although an electromagnetic representation of grooves and pits can be transferred over the Internet, the actual grooves and pits cannot be transferred over the Internet. Figure 2a shows a schematic drawing of a magnetic hard drive, specifically a single hard drive platter that stores digital information. Magnetic hard drives typically contain multiple, stacked platters, which are rigid, circular discs made from aluminum or glass. Platters are divided into circular tracks, which can be further subdivided into sectors. Each sector contains a fixed number of storage layer domains, which are the physical implementations of data bits (0s or 1s). When writing data, the write head element passes over the domains and impresses magnetic fields into the domains. During impression, the write head element creates a strong magnetic field at its tip (represented by the red arrows) to align the magnetic material in that domain in the same direction. The magnetic field is stored in one of two directions (represented by the black arrows). In order to read the data, the read head element passes over the domains. Instead of impressing the magnetic field like the write head element, it detects the direction of the magnetic field in each domain. If the magnetic field is constant from one domain to the next, no electrical signal is induced in the read head element, which interprets the data as a 0 bit. If the magnetic field changes from one domain to the next, an electrical signal is induced in the read head element, which interprets the data as a 1 bit. ReDigi’s servers likely contain magnetic hard drives to store the iTunes music files because of their massive storage capabilities. Many of ReDigi’s subscribers likely have magnetic hard drives in their personal computers as well. However, due to their rapidly decreasing prices, non-moving parts, and superior read and write speeds, some ReDigi servers and ReDigi subscribers may have solid-state drives. Despite the differences between magnetic and solid-state drives, data in each is typically stored in a binary fashion. Figure 2b shows a schematic drawing of a simplified solid-state hard drive. The drawing shows a memory unit capable of storing 32 bits of information. One bit of information is stored in each of the transistors, which are arranged into eight rows and four columns. Each bit is chosen for storing information by applying appropriate voltages to its corresponding word line and bit line. The right side of Figure 2b shows an enlarged diagram of the transistor corresponding to word line six and bit line three. The transistor is composed of a silicon base and two other silicon layers (the gates) separated by two insulating layers (blue layers). Each transistor operates in two states: an “on” state (1 bit), and an “off” state (0 bit). The “off” state is programmed by applying a positive voltage to the control gate to attract a negative electrical charge (in the form of numerous electrons) into the floating gate. The transistor is erased to the “on” state when the electrical charge is removed from the floating gate by applying a negative potential to the control gate. The electrical charge stored in the floating gate directly effects whether current will flow through the silicon base layer. In order to read the data stored in the transistor, the current is measured. If current flow is detected, a 1 bit is read. If current flow is not detected, a 0 bit is read. Although it is tempting to define these electrical charges and magnetic fields as fixed (in the legal copyright sense) in the drive, they are perhaps better described as contained or stored at a waypoint. This is because they are not intimately tied to the recording layer like grooves and pits, but instead are merely stored in an electronic transistor or a magnetic domain until they are transferred to a new storage unit. Furthermore, because grooves and pits are physically fixed in the recording layer, they cannot be extracted and transferred in media that carry only electrical and magnetic signals. The key point of this analysis is that when digital files are transferred from magnetic hard drives and, certainly, solid-state drives, no new material object is created because the electrical charge and magnetic fields that constitute the data are actually transferred from waypoint to waypoint. A more insightful way to conceptualize such data storage is to view the electrical charge and magnetic fields as material objects themselves, rather than assigning that role to the magnetic storage layer or transistor. In this schemata, every time data is transferred, the material object is transferred, which further implies that no new material object is created. This conceptualization posits that, upon transfer, the electrical charge or magnetic field is released from the waypoint; otherwise, the data would necessarily be copied into a new material object. And, just as the foregoing analysis indicated that electrical charge is easily stored and removed from the floating gate, magnetic fields can be stored and removed from their domains. While it may be unlikely that the exact material object in the legal sense (electron/magnetic field) is transferred from one waypoint to another, one cannot definitively say they are not transferred because they all appear identical to human observers. This shows how digital files can be differentiated from physical grooves and pits, since it is never possible for a physical, sculpture-like material object to be transferred along a medium conducive to electromagnetic signals. Perhaps an analogy would help solidify the concept. Consider a series of five buckets at point A, of which the first three contain water and the last two do not. The five buckets at point A can be imagined to represent five bits in a “11100” sequence. One way to transfer that information is to carry the five buckets, with their contents, to point B. However, if the only way to transfer the bit sequence from point A to point B is copper tubing, carrying the buckets is no longer feasible. Nonetheless, the information can still be transferred to point B using the copper tubing, a prearranged timing protocol to know when to expect the water (if there is any) from each bucket, and five receiving buckets available at point B. Only the water, not the buckets, is essential to the communication because the water, not the bucket, is indicative of the bit sequence. The water (electric charges and fields) is the material object in which the information (sound recording) is fixed, while the bucket (magnetic hard drive or solid state drive) is simply a storage container. When discussing vinyl records and CDs, however, there is no water. The shape of the bucket is the data-carrying object in this alternate universe. Although the user at point A could send color-coded water through the copper tubing to signify whether the bucket shape is, for example, cylindrical or rectangular, if the person at point B uses that information to create cylindrical and rectangular buckets of their own, we know they must be new material objects because the buckets cannot physically pass through the copper tubing. It is this conceptual difference the court was unwilling to recognize in its ReDigi opinion. Instead of discussing the physics of storing digital information in magnetic and solid-state drives, the court chose to make a conclusory declaration that “[i]t is simply impossible that the same ‘material object’ can be transferred over the Internet.” Axiomatically, the court stated, “[t]his understanding is, of course, confirmed by the laws of physics.” However, if courts are going to premise infringement of reproduction rights on the creation of a new material object, it is critical that they recognize what fits that category. With today’s modern technology, the line differentiating material objects from containers storing such objects has become clearer. Though the two are essentially indistinguishable with vinyl records and CDs, they can be conceptually separated in modern mass storage devices.  Without a proper defense, this constitutes direct infringement of the copyright owner’s distribution right under 17 U.S.C. § 106(3). Accordingly, ReDigi asserted the first sale defense, which entitles “the owner of a particular copy or phonorecord lawfully made under this title, . . . without the authority of the copyright owner, to sell or otherwise dispose of the possession of that copy or phonorecord.” However, the court rebuffed ReDigi’s attempt to use the first sale defense because “as an unlawful reproduction, a digital music file sold on ReDigi is not ‘lawfully made under this title.’” Obviously, this conclusion is dependent upon the court’s finding that the phonorecord uploaded to the ReDigi server is a new reproduction of a phonorecord. And because the court believes it is “impossible for the user to sell her ‘particular’ phonorecord on ReDigi, the first sale statute cannot provide a defense.” But, as the previous section on reproduction rights attests, the court likely cannot—and does not even attempt to—substantiate its statement that it is impossible for a subscriber’s particular digital phonorecord to be transferred to the ReDigi server. This is because the media used to send electromagnetic signals across the Internet do not transfer the sculpted grooves of vinyl records or pits of CDs, but rather transfer the electrical charge and magnetic fields that are the stored material of today’s digital files. Thus, the court’s conclusion that “[t]he first sale defense does not cover [transferring digital files] any more than it covered the sale of cassette recordings of vinyl records in a bygone era” is inappropriate in this context. As techniques and technology improve to more simply and efficiently transfer data, analogies to anachronistic practices become obsolete as well. A cassette recording of a vinyl record necessarily entails two phonorecords. Regardless of whether the cassette tape or vinyl record was made first, the fact that another phonorecord was produced implies that a new phonorecord was produced. Because the new phonorecord (i.e., the cassette recording in the court’s analogy) is unlawfully reproduced, the first sale defense is inapplicable. In contrast, material objects that store digital phonorecords (e.g., electrons) are completely transferrable and thus no new material object need be created. Once one recognizes that a new phonorecord is not necessarily being created, the conclusion that the first sale defense is inapplicable to ReDigi is called into question.  Unlike ReDigi’s service, which “creates a new material object,” the court claims that “relocating files between directories and defragmenting” (which also creates a new material object under the court’s interpretation of a reproduction) are “almost certainly protected under other doctrines or defenses.” However, it does not state upon which legal doctrine this declaration is premised. In fact, upon further review, it is not clear whether these personal file reorganization actions would qualify as either fair use or de minimis, the two most germane defenses.