“Reselling” Music Files?

The New York Times has an interesting piece about ReDigi, a company that bills itself out as a “legal alternative” for selling digital music you’ve purchased. According to the article, ReDigi analyzes the metadata of the digital file to verify that it came from a digital provider like iTunes or Amazon, and then transfers that file from the user’s computer to presumably servers controlled by ReDigi. ReDigi then deletes any copies left on the user’s computer. The legal issue with this is a matter of copyright law and the “first sale” doctrine. It is long settled that if, for example, I purchase a CD of music, or a painting, I am generally not in violation of any U.S. copyright laws if I decide to sell the CD or the painting. The “First Sale” doctrine provides that an individual who knowingly purchases a copy of a copyrighted work from the copyright holder (or an authorized agent of the copyright holder) receives the right to sell, display or otherwise dispose of that particular copy. That individual’s right to distribute that copy ends once the individual has sold that particular copy. Here the issue is whether or not what is being “resold” is an unauthorized copy of the digital file. In other words, is ReDigi selling the actual copy provided by the digital provider (which would be permissible) or is selling an exact digital copy of the file (not permissible)?

Generally speaking, the Copyright Act defines “copies” as “material objects . . . in which a work is fixed . . . , and from which the work can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device.” A work is “fixed” when it “is sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration.” The Copyright Act does not define temporary copies or copies in a transitory state. Courts have ruled that copying software into a computer’s memory constitutes the creation of a copy under the Copyright Act. Following that line of cases, temporarily copying a file to a server and then deleting the original copy from the user’s hard drive, would appear to be impermissible.

Interestingly, and perhaps predictability, the Recording Industry Association of America (RIAA), which represents the major record companies, sent ReDigi a cease-and-desist letter, accusing it of copyright infringement. I will continue to follow this.