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Librarians and law professors speak up for ReDigi as digital resale case rumbles on

By | Published on Tuesday 21 February 2017


While the idea of buying downloads first hand becomes increasingly antiquated for an ever growing chunk of the market, the legalities of buying second hand downloads are still being considered in the US courts. This despite download resale platform ReDigi reaching a settlement with Capitol Records on damages last year, and then filing for bankruptcy. Both ReDigi and others have now filed new papers with the appeals court.

As previously reported, ReDigi offered a service via which people who had bought downloads from legitimate platforms could then resell those digital tracks to other people. The record industry quickly cried foul – doubting ReDigi’s insistence that its technology ensured a track was wiped off a seller’s machine once a sale was completed – while adding that even if it did, the digital transfer of an MP3 file from one computer to another constituted a copy, and that required a licence from the copyright owners.

ReDigi argued that the so called first sale doctrine – the principle under American law that allows people to resell CDs – should apply to digital. But the record industry said that that principle should only apply to physical product, not least because when you resell a CD no new copy is made, whereas copying has to occur to digitally transfer a file.

Capitol Records – then still an EMI subsidiary – led the legal battle on the record industry’s behalf and ultimately won. Though ReDigi quickly vowed to appeal, and has continued that process despite reaching the aforementioned deal on damages with the now Universal-owned Capitol last April and then filing for bankruptcy in August. To that end, the digital firm filed new papers with the Second Circuit Court of Appeals earlier this month.

Now, according to MediaPost, various third parties have filed so called amicus briefs supporting ReDigi’s interpretation of US copyright law, and its argument that its model was protected by the first sale doctrine and/or other fair use rights. ReDigi’s supporters include the American Library Association, which says that the ruling against the digital firm creates legal uncertainties around various online library initiatives.

The filing by the American Library Association and others claims that allowing the resale of digital content has no detrimental effect on copyright owners. It states: “So long as the seller’s copy is deleted, the ReDigi service leaves the copyright holder no worse off than it would be due to the transfer of a physical copy under the first sale doctrine”.

Meanwhile, in a separate amicus brief, a consortium of law professors also hit out at the precedent set by the ruling in the ReDigi case, stating: “By eliminating all practical methods of transferring digital purchases, the District Court completely foreclosed the sorts of secondary markets – used book and record stores, libraries, garage sales, even gifts and bequests – in the digital marketplace that have played a crucial role in promoting access and preserving culture in the analogue market”.

It remains to be seen if this debate is resolved before the very concept of the MP3 download is wiped from the public consciousness.