The ReDigi lawsuit took an intriguing turn yesterday. Google sent a letter to the judge in the EMI v. ReDigi case asking permission to file an amicus brief. Google says that it is not taking sides in the case, but some points of law that will be considered could set important precedents for the future of the cloud hosting industry.
Google brings up the Cablevision case that legalized remote-operated DVRs, and the Sony v. Universal case that legalized VCRs and explicitly called “time-shifting” fair use, But the really interesting part is this argument:
The final principle concerns the interplay between two provisions of the Copyright Act which, by their plain language, are limited to material objects: the distribution right, Section 106(3), and the first sale doctrine, Section 109. Both provisions deal with copies and phonorecords, which are material objects in which copyrighted works are fixed. The present motion argues that the first sale doctrine—which permits the owner of a lawfully-made copy or phonorecord to sell it without needing the copyright owner’s permission—cannot apply to this case because no material objects change hands. But it also argues that ReDigi infringes Capitol’s exclusive right to “distribute copies or phonorecords,” despite its admission that no material objects are distributed. Either both provisions apply, and ReDigi’s service may be protected by the first sale doctrine, or neither applies, and ReDigi’s service does not infringe the distribution right. Google takes no position on which outcome is correct but urges the Court to reject an internally inconsistent argument that would weaken the statutory restrictions on the distribution right.
(So much for taking no sides. That sure sounds like “Heads ReDigi wins, tails EMI loses” to me.)
Nonetheless, Google asks that the court deny EMI’s request for a preliminary injunction and proceed to consider the matter fully on the merits.
It reminds me of something my friends are prone to say when a football game suddenly goes from boringly one-sided to a close contest: “It looks like we’ve got a ball game.” The ReDigi case looks like it has the potential to go from a fairly one-sided and obvious copyright infringement lawsuit to a serious consideration of digital rights that could set some important precedents for the future of property rights in all electronic media, including e-books.