Publishers Applaud Appeals Court Opinion in ‘Capitol Records v. ReDigi’ Copyright Case

In News by Porter Anderson2 Comments

The Second Circuit Court of Appeals rules that resale of digital content as conceived by the startup ReDigi is a copyright infringement.

Image – iStockphoto: Stephane Noiret

By Porter Anderson, Editor-in-Chief | @Porter_Anderson

‘This Cockroach of a Legal Case’
Probably the most ringing phrase in this week’s news about the Capitol Records v. ReDigi case is Michael Cader’s “once again.”

In his report at Publishers Lunch, Cader is getting at the revolving-door feel of a long-running and failed effort.

He writes, “Just as a district court unequivocally and thoroughly called the (now bankrupt) startup ReDigi’s efforts to establish a scheme and marketplace for reselling ‘used’ copies of copyrighted digital files of music (and thus potentially ebooks, as well as video, games and software) copyright infringement in 2013, the Second Circuit Court of Appeals has ratified that decision in this cockroach of a legal case.”

And he’ll get no argument from the Association of American Publishers. In a statement from the AAP’s president and CEO, Maria A, Pallante, we read:

Maria A. Pallante

“Publishers welcome the Second Circuit’s sound ruling in Capitol Records v. ReDigi on on the three major issues addressed in the opinion.

“First, in applying the plain meaning of the Copyright Act, the court confirmed that when a defendant makes unauthorized reproductions of copyrighted works and distributes them, it is not merely reselling or retransferring used works in the manner of a used bookstore. Rather, it is engaged in copyright infringement, and therefore disqualified from asserting the limitations on the distribution right afforded by the first sale doctrine.

“Second, the court unequivocally rejected fair use, in which it highlighted that the defendant’s conduct creates nearly identical copies of protected works and is therefore aimed squarely at the copyright owners’ primary markets.

“Third, the court rejected the invitation from law professors to overtake Congress on matters of policy, noting that on the question of whether first sale should be extended to the digital realm, it is not the court but Congress they must seek to persuade.

“This case is critical in that it reinforces the underlying equities of the copyright law, in which the rights and investments of copyright owners are a valuable part of the marketplace of innovation, not to be minimized or appropriated in the name of expediency.”

In essence, per the AAP, the court’s opinion is—once again, as Cader has it—a rejection of the “first sale doctrine” as a defense of the idea of making unauthorized copies of digital files.

Plainly put: No, you cannot sell your ebooks to a second-hand vendor as you might sell your used physical textbooks to the campus bookstore.

Some of us remember numbing presentations in New York years ago of the ReDigi concept of a “used digital resale platform,” and as far back as March 2013, a Tools of Change article from Jenn Webb looked at the issue and many viewpoints on it–mentioning even then “ReDigi’s ongoing court case.”

Andrew Albanese

At Publishers Weekly, Andrew Albanese this week looks back at how, “When it first launched in 2011, ReDigi touted the legality of its service. Users could upload their old iTunes tracks to ReDigi, which removed the tracks from the user’s computer, and offered them for resale. The company stressed that it never copied the files, but rather ‘migrated’ them, bit by bit, from one device to another, the end result mimicking an analog resale.”

Albanese also refers to the amicus brief filed last year by the AAP in the case, in which the association warned of “grave and immediate consequences for the publishers of literary works in print and digital formats,” something that would be “out of step with the careful calibrations employed by Congress and the courts when considering infringements” to copyright protection.

As Albanese now writes, “If digital first sale is going to become a reality, it may take an act of Congress to do it.

“In a highly anticipated decision, a three-judge panel of the Second Circuit Court of Appeals this week shot down the prospect of a resale market for digital files emerging any time soon, unanimously affirming a 2013 ruling that effectively shut down ReDigi, the upstart service created in 2011 to offer consumers a way to resell their legally purchased iTunes files.”


More from Publishing Perspectives on digital publishing is here.

About the Author

Porter Anderson

Facebook Twitter Google+

Porter Anderson has been named International Trade Press Journalist of the Year in London Book Fair's 2019 International Excellence Awards. He is Editor-in-Chief of Publishing Perspectives. He is also co-owner and editor with Jane Friedman of The Hot Sheet, the newsletter for trade and indie authors. He formerly was Associate Editor for The FutureBook at London's The Bookseller. Anderson also has worked as a senior producer, editor, and anchor with CNN.com, CNN International, and CNN USA, and as an arts critic (National Critics Institute) with The Village Voice and Dallas Times Herald.

Comments

  1. Typical how great you all feel bashing something that could actually help society, authors and publishers alike. Just another “feel good” to a select few, it is obvious how the contributors above support eliminating competition and keeping a leash on their authors.

    If you bothered to read more about ReDigi and our Authors & Artist program “Artist Syndication” you would see that ReDigi was paying those Authors & Artist more than you the publishers paid them on the first sale of the work. Those A&A would now have a long tail on the sale and resale of their works, including meaningful data about their readers as well something the publishers keep to themselves.

    The bottom line is a secondary market for goods is good for society. It helps all classes of buyers or potential buyers be able to experience the joy of digital ownership at lower “used price” levels.

    The publishers should be embracing the excellent technology of ReDigi as it can protect their copyrights better than ever before. We were one of the original Block Chain companies which makes our users extremely secure in many ways.

    Andrew, as you said ReDigi reached out openly to the Publishers presenting the details of how ReDigi could significantly benefit them. I see you don’t believe in the same as you failed to contact any one or more of the over 20 legal scholars to get their take or even someone from the company. But I guess that is the issue you & your supporters only want to hear one side.

    You might want to look at how many times AA was in bankruptcy. Yes we are in Chapter 11 REORGANIZATION in order to restructure our Debt, we are far from dead and gone.

  2. See how Ebay is encouraging people to sell multiple copies of other authors’ ebooks

Leave a Comment