A Legal Blog by Aaron | Sanders, PLLC


Copyright Holders Eat ReDigi’s Cake and Have it, Too

But is the Cake a Lie?

As many of you know, the trial court in Capitol Records v. ReDigi ruled over the weekend that ReDigi’s business model of re-selling digital music files infringed the copyright. Here’s the opinion. I’ve written about ReDigi quite a lot because (1) ReDigi’s business model poses lots of unresolved legal problems and (2) I had to create a new set of posts once I (along with the rights holders) learned how ReDigi really worked. My previous ReDigi posts are collected here. I only have time for a quick post before I have to go somewhere*, so here’s my quick analysis.

* I’ll be moderating a panel on gTLDs at the ABA Intellectual Property Meeting in Crystal City. You should totally come, if you can, because my panelists are awesome and the topic is timely, important and fascinating, which will more than make up for my bumbling attempts to ask incisive questions.

I couldn’t find a free image of a Portal Cake, but this cake looks pretty good.

Background: Is ReDigi’s Cake Just Mostly Frosting?

Here’s how ReDigi works, in a very tiny nutshell. You sign up. You upload songs…

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Rick’s Copyright Course Final Exam: Part 1 of 3

Part 1: The Important Details

If you follow my Twitter account very much, you already know that, in early January, I was really suffering. I was grading law exams for my Copyright course that I had taught at Vanderbilt University Law School. The problem wasn’t what the students had written. Many of the exam papers I received were excellent. The suffering was largely self-inflicted. I could have written a shorter, simpler or narrower exam, and spared myself a lot of grief. Had I known how hard the grading would be, I might have quailed when I was preparing the exam.

Exam Philosophy

And, yet, I don’t regret how I structured the exam. It was structured to test the ability to analyze core copyright concepts (e.g., substantial similarity, originality, authorship, ownership, fair use, the exclusive rights, etc.) and the many small but important details (e.g., termination rights, duration, restoration, misuse, minor defenses, etc.), plus stuff in between (useful articles, statutory licenses, architectural works, etc.). By and large, I think it succeeded.

One can’t cover everything, and traditionally law professors have tended not to sweat the details. But I felt I had to. In copyright law, details matter. And I remember how frustrated I was…

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Music Industry v. ReDigi: The Problem with Phonorecords: Copyright

When Is a Phonorecord Not a Phonorecord?

Last time, we finally figured out how ReDigi operates and how it plans to get around the fact that it must make at least one (and often two) intermediate copies of a song file in order to complete the sale of the song file. ReDigi’s solution is to structure itself as an Amazon-style music locker and rely on space/format shifting for those intermediate copies.

But this doesn’t get around the other concern I raised (way back here), which we might call the “phonorecord problem.” Recall that the nub of the RIAA’s argument is that the First-Sale Doctrine is limited the distribution right. The RIAA’s point was that the intermediate copies exercised the reproduction right and, therefore, fell outside the scope of the First-Sale Doctrine. While I thought there might be a different way of looking at that issue, it turns out ReDigi is fine with the RIAA’s argument, since it thinks it has an alternate (and better) legal theory regarding those intermediate copies.

The “phonorecord problem” is more fundamental. Under a strict and plain reading of the Copyright Act, the distribution right is limited to the distribution of physical embodiments of the copyrighted works, e.g.,…

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Music Industry v. ReDigi: Cute or Clever?

Is ReDigi a Marketplace or a Music Locker?

I am compelled to blog about ReDigi one more time because, at long last, we actually know how ReDigi operates. And it’s not *quite* how ReDigi says it works on its FAQ. It’s actually far more clever and elegant–at least, legally speaking. This means, among other things, that parts of my previous posts about ReDigi are no longer completely accurate* (because they were based on the ReDigi FAQ and some other public statements by ReDigi). At a minimum, I need to clear that up. But also, ReDigi’s legal theory is worth an additional blog post.

*Among other things, the whole “Do Star Trek replicators infringe copyright” thing was unnecessary, as it turns out. As you’ll see, ReDigi does not destroy the original at the same time it creates the copy–a technological feat that would be remarkable but not impossible. Still, it’s an interesting thought experiment into the nature of the reproduction right, no?

ReDigi ReCap

To recap a bit about ReDigi: it provides an online marketplace for the re-sale of used audio files. It has one very important limitation: only songs you purchased online were eligible–thus, you can’t sell songs you ripped off…

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ReDigi Finale: Comparing Apples to Amazons (Part 20 in Our Online Music Services Series)

And Other Loose Ends.

This is going to be (I hope) the last post about the ReDigi situation, at least for a while. I’ll admit I got distracted by the RIAA’s little missive to ReDigi. I want to sum up and wrap up. First, the summing:

The Three Legal Obstacles to a Digital First-Sale Right

Looking over the five (!) previous posts about ReDigi, we see three obstacles to its legality:

Do the consumers who wish to sell their digital singles actually own, or merely license, the music files? That’s what Vernor helps us answer, as discussed here.
Is the First-Sale Doctrine limited to the same physical item that was the subject of the “first sale”? I discuss this question here and here.
By what right can ReDigi make the temporary, intermediate copies necessary to transfer the song file? I discuss this issue here and here.

So. There. Now, let’s tie up a few loose ends.

What About Amazon?

When I first discussed whether ReDigi’s system could comply with Vernor (to answer the question of whether the potential sellers “own” the digital downloads), I focused exclusively on the iTunes Store license agreement. I did so because (1) iTunes by far the most popular source of legal digital downloads,…

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