Well, I’m never going to take such a strong position in any of my posts here. I try to lay it out as objectively as possible and leave it to the reader to reach conclusions. You’ve drawn a compelling (and I think inevitable) analogy that focuses in on what I see as the key issue; however, I assume Bopaboo’s counsel would take an equally hard line on the other side of this issue.

Thanks for the kind words porkchops and Chris.

also, the thing i dont get is that it keeps saying you upload your music on bopaboo that you NO LONGER WANT, implying that you are giving away that music that you upload. but whos to say the uploader didnt just copy his music library on another harddrive?

What if they embedded serial numbers into every legally obtained digital phonorecord and developed & instituted a method of tracking them?

Or would that be labeled spyware a la Sony/BMG ‘05?

Let’s make two analogies: one in the physical space, one in the digital space.

Physical:

This is the unauthorized sale of a (copy of a) copyrighted work. The analogy is to someone buying a CD, copying it, destroying the original (which is irrelevant, but let’s include it anyway to eliminate obvious responses) and then selling it. First, it’s a violation of the reproduction right. Second, it’s a violation of the distribution right (it’s not a sale of the original CD, so the First Sale Doctrine does not apply). It’s not fair use because it suppresses demand for the original work and it’s done for profit. Copyright infringement. Simple.

Digital:

Another analogy is that this is simply P2P where the downloader pays for the work. That doesn’t affect the legality of the service. It’s people making available copies of works (whether they bought their copy legitimately is not an issue unless the uploader is explicitly given permission to share the files, which is rare enough to ignore here), and then instead of someone going to Kazaa and downloading it, they sign onto Bopaboo and download it (and pay for it, and Bopaboo takes a cut). It’s still P2P and Bopaboo is directly benefiting financially. But unlike Napster and Kazaa, the service appears to be centralized, which opens Bopaboo to significant liability.

So in my opinion the service isn’t only illegal, it’s stupid because Bopaboo is way too involved to easily avoid liability.