ReDigi lawsuit raises questions of fair use and first sale in digital age
July 2, 2012 | 7:56 pm
The Boston Globe has a report on the record labels’ lawsuit against ReDigi, the company that is trying to bring first sale rights to digital music (and, by extension, digital movie and book) sales.
I’ve mentioned ReDigi a number of times, from when it was first conceived (after several similar used-digital-goods efforts failed miserably) to when it launched to when the record labels complained to when they sued in January. ReDigi claimed fair use, Google filed an amicus brief, and a judge decided ReDigi didn’t have to shut down pending the suit.
If you’ve been following the story through those posts, there’s not a lot new here—the article basically summarizes ReDigi’s and the labels’ positions, and gets some quotes from legal experts who favor either side. However, one interesting thing I hadn’t known before is that ReDigi only works with music bought from iTunes, because iTunes does not have any license provision that explicitly forbids reselling the music. (Amazon, on the other hand, does.)
The argument still comes down to whether the resale can legitimately be considered a first sale issue, because the sale process for a digital good involves making a copy. It doesn’t matter if the existing file is deleted at the same time as the new one is made, so it imitates the process of a physical good changing hands—legally speaking, a copy is still a copy.
Also, ReDigi doesn’t have any way of knowing that the seller of the music hasn’t made a copy of it—by using a program that copies or transcodes the files into FairPlay-ID-stripped versions on another disk drive, or even just burning them to CD and re-ripping them later.
At any rate, I’d like to see ReDigi’s gambit succeed, if only because an expansion of consumer rights would make a good countermove to the way that technology has been increasingly used to diminish them lately. And if ReDigi does win in court, I expect there will be “used” e-book sales startups shortly thereafter. But I’m not terribly optimistic about the chances. At any rate, we’ll see what happens when it comes to the courtroom.