Google Can't Weigh In On 'Used' Digital Music Case

by Wendy Davis, Feb 2, 2012, 6:00 PM

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The battle between EMI's Capitol Records and “used” digital music store ReDigi has drawn the attention of Google, which this week attempted to file a friend-of-the-court brief in the case.

The search giant said in a letter to U.S. District Court Judge Richard Sullivan that it wanted to weigh in on the case in order to argue against Capitol's request for an injunction banning ReDigi from continuing to sell used digital tracks. “A premature decision on incomplete facts could create unintended uncertainties for the cloud computing industry,” Google wrote.

Sullivan rejected that request on Wednesday. He said in a written ruling that Capitol and ReDigi “are fully capable” of litigating the copyright issues themselves.

Google's proposed brief has not been placed in the court docket, but the company said in its letter to Sullivan that the injunction against ReDigi wasn't appropriate because “any harm to Capitol can be compensated by money damages in an easily calculated amount, whereas an injunction threatens to put ReDigi out of business.”

The search giant said it wasn't taking a position on whether ReDigi's service violates copyright law. Instead, Google essentially warned that a decision in the case could impact many cloud computing companies, depending on how the ruling was worded.

ReDigi, which stands for recycled digital media, says it enables consumers to resell digital music they purchase. The company scans users' hard drives for proof that the music was acquired legally, and then allows users to upload their tracks. ReDigi deletes the original, but doesn't appear to have any way of knowing whether consumers made extra copies.

ReDigi subsequently offers to sell the “used” version to other buyers. The company adds that it “gives back to artists and labels through generous payments with every track sold (and resold)."

The start-up says that the legal principle of “first sale” allows consumers to resell digital tracks the same way they can resell physical CDs or vinyl records. Courts have generally said that consumers can resell products they have lawfully acquired.

But Capitol says that ReDigi isn't allowing consumers to sell the same products they bought, but digital copies. Among other arguments, Capitol says that ReDigi is infringing copyright by enabling users to make those copies.

Uploading, by its very nature, can only be accomplished by making an unauthorized copy of the original user's track,” Capitol argues in its motion for an injunction. “Whether the original file was simultaneously or subsequently deleted does not matter, as the Copyright Act does not excuse unauthorized reproduction simply because the infringer chooses to destroy the source copy.”

Sullivan is slated to hold a hearing in federal court in New York on Monday.

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