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ReDigi, that startup that aimed to allow people to buy and re-sell “used” digital music, has come under fire from the RIAA. Ars Technica reports that the RIAA has sent company a letter demanding that it cease and desist all “infringing activities” and make its records available to the RIAA as evidence.

I can’t say I’m terribly surprised; I expected it would come to this when the company announced its plans back in February, let alone when it started buying tracks in October. The company does bend over backward to try to make sure that the resold copies weren’t ripped from CDs, and that they are deleted from the user’s hard drive after being “sold”. It claims that its business is legal under the “first sale” doctrine that allows people to resell works they have previously bought. However, that still doesn’t comply with actual copyright law concerning the sale of copies of media.

In a comment to a review of the service, copyright attorney Rick Sanders pointed out the crux of the problem:

No matter how ReDigi does it, it has to make a couple of copies (or have its customers do so): once to its server and once again to the buyer. The fact that the “old” copy is deleted simultaneously as the “new” copy doesn’t make it any less of an infringement, at least technically. I have to think that ReDigi is counting on a fair use argument.

It’s also not clear to me how ReDigi could prevent me from copying my iTunes track to a back-up drive, “selling” it, and then copying it back to my main hard drive afterward. (I suppose it may be that its transaction software keeps an eye out, but I could always uninstall it after I’d done all the selling and buying I wanted to and then copy the stuff back—or just keep and use the music on a separate computer altogether.)

At any rate, this is going to go through the courts, and the future probably is not bright for the service. Courts haven’t been too kind to attempts to innovate around legal loopholes lately; movie streaming service Zediva had to shut down after a court ruled that it could not make an end run around streaming license requirements by tying each stream to a physical DVD at its headquarters.

Of course, if by some fluke ReDigi does manage to convince a court (and appeals court, and possibly the Supreme Court) that its “used” digital music sales qualify as fair use, it could open the door to other startups doing the same for “used” e-books.

 
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