And so it begins.

In October, “used digital music” reseller ReDigi began operations. A month later, the RIAA demanded that it cease and desist its “infringing” activities and make its records available as evidence in the lawsuits that were undoubtedly soon to come.

Now, one of those lawsuits has arrived. Greg Sandoval reports on CNET that record label EMI has filed suit against ReDigi,

In its 18-page complaint, filed in a New York federal court, EMI alleged that to operate its business, ReDigi must make numerous unauthorized copies of songs and that that violates copyright law. ReDigi says it scans a user’s computer hard drive to obtain a copy of the song the person wants to sell and then deletes the copy on the seller’s hard drive. But there’s no way ReDigi can guarantee that users haven’t made copies of their music libraries and stored them elsewhere.

ReDigi holds that digital music resale is protected through the First Sale doctrine, which enables consumers to resell any media they have legally purchased. (ReDigi uses a verification system to make sure any music it resells was bought digitally, rather than pirated or ripped from CD.)

EMI responds that the digital copies ReDigi resells are not the same ones that were sold to the consumer—they’re copied several times over the course of the transaction. In the eyes of the copyright laws (which were developed back in analog days), that’s just the same as selling a cassette tape copy of an LP record.

This promises to be an interesting case, though I suspect based on the precedents Sandoval cites (the affair and BlueBeat’s “psycho-acoustic simulations” of Beatles songs) the judges are going to end up ruling in favor of the record labels. The laws as written simply don’t allow for the possibility of reselling digital media, and it is doubtful that laws permitting it could ever be passed. (Indeed, SOPA looks to take things in the opposite direction.)

The media industries hate used resale of physical media with a passion, and some of them are doing everything they can to eliminate it. There’s no way they would allow a second-hand market to spring up for digital media, too. To paraphrase the Borg, ReDigi is futile.


  1. The doctrine (or right) of first sale has for over a century been unasailable with respect to physical media such as pBooks, tapes and vinyl recordings. See:

    The quibble, in the case of digital works, centers on the concept of “copy.” If I photocopy a pBook and then sell it, that is infringing. If I sell a copy of an eBook without retaining a copy of it, that is not infringing. It all hinges on whether or not I have retained a copy of the work via photocopying or otherwise. So where is the burden of proof, on the seller or on the rights holder?

    It will indeed be very interesting to see how the courts handle this.

  2. “…where is the burden of proof, on the seller or on the rights holder?”

    Given that the ‘seller’ usually doesn’t have the rights to sell the digital copy, the question would seem to be academic.

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