Libraries, Law Professors Back ReDigi In Fight Over 'Used' Music

ReDigi -- a company that sought to create a used marketplace for digital music -- is getting some high-profile support in its long-running battle with Capitol Records.

This week, the American Library Association, Internet Archive and other groups argued in a friend-of-the-court brief that ReDigi should have prevailed in a copyright infringement lawsuit brought by Capitol.

The organizations 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." (The Open Library allows people to borrow e-books.)

The groups are weighing in on a fight dating to late 2011, when ReDigi launched a platform that enabled iTunes users to re-sell unwanted tracks. ReDigi, which declared bankruptcy last year, said its platform scanned users' hard drives for proof that consumers' music was acquired legally and then transferred tracks to the cloud while simultaneously deleting them from the original users' hard drives.



Capitol Records took issue with ReDigi's model, arguing that it infringed copyright. Capitol argued that consumers weren't selling the same works that they purchased, but copies they uploaded to the cloud. That model is illegal, Capitol said, because only the copyright owner has the right to make copies.

The label also said that even if the tracks are removed from people's hard drives, users may have kept copies of the files on other devices.

ReDigi fired back that its business model was protected by the "first sale" concept, which gives consumers the right to resell products they legally purchased.

U.S. District Court Judge Richard Sullivan in New York sided with Capitol. Sullivan said in his ruling that the first sale doctrine only applies to "material items" and not digital files.

Earlier this month, ReDigi asked the 2nd Circuit Court of Appeals to reverse that finding. The company argued that Sullivan's ruling leaves consumers without the ability to re-sell digital music, short of selling their hard drives or other physical equipment. ReDigi also says its service is protected by fair use principles, because it enables people to exercise their right to resell products they've purchased.

This week, the American Library Association, Internet Archive and other groups say in their friend-of-the-court brief that allowing people to re-sell digital music doesn't harm copyright holders any more than allowing people to re-sell CDs, vinyl records or other physical objects.

"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," the groups say.

Two dozen copyright law professors, including UC Berkeley's Pamela Samuelson, also sided with ReDigi in a separate friend-of-the-court brief. They say that Sullivan's ruling effectively strips consumers of the right to re-sell digital media.

"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 analog market," they write.

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