Battle Over 'Used' iTunes Tracks Could Go To Supreme Court

ReDigi, a company that sought to create a marketplace for "used" digital tracks, wants to take its long-running battle with Capitol Records to the Supreme Court.

The company, now in bankruptcy, plans to argue that its platform merely enables consumers to re-sell music they've purchased. Consumers have long had the so-called “first sale” right to re-sell their lawfully acquired physical CDs or record albums. ReDigi contends that it enables consumers to extend that first-sale right to digital files.

Late last week, ReDigi said it plans to seek Supreme Court review. The company asked Justice Ruth Bader Ginsburg to extend the deadline for filing an official petition until May 13.

ReDigi says in its application that the battle “raises novel and important legal questions about copyright law.”

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The company adds: “These questions include whether, under the first sale doctrine, a person who lawfully acquires a digital file through the Internet has the right to resell it.”

The fight between ReDigi and Capitol dates to 2011, when ReDigi launched a platform that enabled iTunes users to re-sell unwanted tracks. ReDigi, which declared bankruptcy in 2016, said its platform scanned users' hard drives for proof that the files were acquired legally, then transferred tracks to the cloud while simultaneously deleting them from the original users' hard drives.

Soon after ReDigi debuted, it was sued for copyright infringement by Capitol Records. 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.

Late last year, the 2nd Circuit Court of Appeals in New York sided against ReDigi, ruling that its platform operated by illegally making copies of digital files. The appellate judges also said ReDigi couldn't guarantee that users didn't retain duplicates of the same music they sought to re-sell.

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