EMI v Re-Digi begins

November 2012

Record labels, internet


A Manhattan court has begun hearing the legal challenge to the right to sell digital music files as “used” goods. The case centres on how copyright law for physical goods applies to digital products. EMI has brought the case against ReDigi, a site that allows users who’ve legally purchased music in digital form to sell it on to somebody else. Users can only sell songs they’ve bought from iTunes or ReDigi itself: they can’t sell tracks they have ripped from a CD. Re-Digi claims the service must be legal because of the US ‘first sale’ doctrine. The major labels disagree. They argue that the first-sale doctrine only applies to physical music products, saying that when a CD changes hands no actual mechanical copy is made of the songs or recordings contained on the disk, whereas when an MP3 is transferred from one PC to another a copy does take place. EMI’s attorney Richard Mandel said: “You are selling and distributing recordings. In order to do that, you have to make a copy and that is a violation of the reproduction right of the Copyright Act”. But Gary Adelman, representing ReDigi, countered: “There is no copy involved. The actual file is being transported. That’s how the technology works”.  A secondary claim is to stop Re-Digi hosting short clips of relevant tracks online – something recently held to be ‘fair dealing’ in Canada in SOCAN v Bell. In the EU the re-sale of ‘used’ computer software was held to be legal despite licence terms dictating the opposite (UsedSoft Gmbh v Oracle Int Corp). Judge Richard Sullivan will decide and Google has written a letter judge Sullivan making public its “specific and vital interest” in the outcome of the EMI v ReDigi case, which will set an important precedent in the music industry.



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