Can ReDigi re-sell its self to the Court of Appeal?

March 2017

Recorded music, internet

It appears that ReDigi is making a comeback with some high-profile support. Back in 2013 we were listening to the case of Capitol Records, LLC v ReDigi Inc. The case asked if the digital music purchases were capable and eligible for resale under the first sale doctrine. 
The doctrine of first sale is (of course!) the legal concept that has been enshrined into US and other copyright laws. It provides that purchasers of copyrighted material are afforded the right to re- sell the material. In the UK we like to explain it to be that once the copyrighted or trade marked product is sold, the proprietor of the copyright or trade mark has exhausted his/ or her rights and cannot use the rights to stop the product being re-sold. 
In ReDigi the issue was that of the purchasers of digital music being afforded the right to re-sell the music.  Capitol Records were not fans of this, they said that it was a infringement of copyright. They argued that the infringement came about when  copies of the music files were made during the transmission from users of ReDigi to the ReDigi servers and then again in transactions between users. 
ReDigi contested these allegations and explained that the transactions modify the music files, and this modification results in the file to be reassigned to the purchaser. Therefore, it is argued that the music files are modified rather than copied.  Nonetheless, Judge Richard J. Sullivan ruled in favour of Capitol Records. The judgement explained that the transfer of the digital music  from one storage platform to another is in fact an unauthorised reproduction. Therefore, the unauthorised reproduction is ultimately an infringement of copyright.  It was further stated that the doctrine of first sale is only applicable to material items. 
However, earlier this month ReDigi asked the Court of Appeal to reconsider and reverse the decision.  It is argued that the decision means that purchasers of digital music are left being unable to re-sell their music.  The example is given that purchasers of CD’s are able to re-sell their CD’s or vinyl to no harm of the copyright holder, why can’t the same be done for digital equivalents. 
Over twenty copyright law professors and a number of other organisations including the American Library Association, the Internet Archive and other groups have sided with ReDigi. and they have explained that the previous ruling strips consumers of digital music of the right to re-sell the digital content. The organisations also argue that a victory for ReDigi would also benefit libraries by offering “additional legal certainty to roll out innovative services such as the Internet Archive’s Open Library (Open Library allows people to borrow e-books)”.
In Europe, the European Court of Justice decided that the legal purchaser of software can re-sell that software despite terms in a licence designed to prevent that (Case 128/11 UsedSoft v Oracle) and in Kirtsaeng v John Wiley & Sons the US Supreme Court held the first sale doctrine did apply to copies of textbooks (paper) even when they had been made (lawfully) abroad
Will ReDigi’s remix be successful, will it give “used” music a second loving home, and ultimately will owners of digital music be afforded the same rights as their tangible cousins? I certainly hope so, after all one man’s trash is another man’s treasure. 
By Samuel O’Toole LLB (Hons) of Trainee Solicitor at Lawdit Music

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