• by Wendy Davis  @wendyndavis, July 25, 2012

ReDigi, a startup that allows people to sell "used" digital music, is asking a federal judge to dismiss a copyright infringement lawsuit brought by music label Capitol Records.

"Capitol should not be allowed to prevail here as its position is contrary to the express purpose of copyright law," ReDigi argues in a motion filed last week with U.S. District Court Judge Richard Sullivan in New York.

ReDigi argues that it enables consumers to resell their digital tracks, which ReDigi says is legal under "first sale" principles. The first sale doctrine generally provides that people who acquire a product lawfully can resell it.

Capitol counters that consumers aren't selling the same digital tracks they purchased, but copies of those tracks. That act of copying is unlawful, Capitol contends.

"There is ... no such thing as a 'used' digital file, akin to a dog-eared book or scratched CD, because digital works can only be uploaded and transmitted through their reproduction," Capitol says in court papers filed last week seeking a ruling that ReDigi infringes copyright.

ReDigi says its platform scans users' hard drives for proof that the music was acquired legally, and then allows users to transfer their tracks. The company subsequently deletes the original.

But Capitol says that erasing tracks from users' hard drives doesn't make the platform lawful. "Putting aside the conceded fact that ReDigi's technology cannot prevent sellers from nonetheless retaining copies of the recordings they have supposedly transferred, there is simply no defense under copyright law that permits one to copy and sell a recording as long as the original is deleted," Capitol argues.

In February, Sullivan rejected Capitol's request for a preliminary injunction, ruling that the company hadn't shown it would suffer "irreparable harm" if ReDigi continues to sell tracks while the case is pending. But Sullivan also said at the time that Capitol had shown a "likelihood" that it will eventually prevail.

At that hearing, Capitol's lawyer, Richard Mandel, said the company doesn't believe that all resales of digital music infringe copyright. For instance, he said, people could sell used iPods with songs on them.

ReDigi is asking for the entire lawsuit to be dismissed before trial, while Capitol is seeking a ruling in its favor before trial, but only on some of its claims.

While the motions are pending, the companies are still gathering evidence in preparation for trial. As part of that effort, Capitol is seeking to learn the identities' of ReDigi's users. Sullivan is scheduled to hold a telephone conference with ReDigi and Capitol on Thursday about that issue.