Google Jumps Into Escalating Debate Over Legality of Selling 'Used' Digital Music

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A dispute over ReDigi, an upstart company that lets users buy and sell "used" digital music files bought on iTunes, is quickly heating up as either the must-watch copyright case of the year or one that's not complicated at all and will result in the company's quick shut-down. The answer depends on who is to be believed.

On Wednesday, Google attempted to jump into the fray, hoping to submit an amicus brief that might go a long way towards bolstering ReDigi's arguments that its service is legitimate. The record industry, led by Capitol Records, opposed Google's efforts to get involved by waiving off concerns that the lawsuit is a threat to cloud storage or space shifting. A judge has now denied Google's request. 

Capitol sued ReDigi in New York federal court on Jan. 6 for copyright infringement.

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To make its resale business model work, ReDigi allegedly is predicated on assisting its users in making multiple, unauthorized copies of sound recordings. The plaintiff says that while ReDigi might argue that song files get stored in a cloud as music gets deleted from a user's hardrive, Capitol says the system really works by duplicating a file and then making a second copy when a transaction is consumated.

In its complaint, Capitol says the correct analogy for ReDigi's business isn't a "used record store," but rather a "clearinghouse for copyright infringement."

In response, ReDigi says the plaintiff has a "profound misunderstanding of how ReDigi works," pointing to systems in place to forensically analyze song files to make sure they came from iTunes, to delete files from devices, to upload files for streaming onto RAM, to control access to songs, to limit storage merely for personal use, and to allow users to downloads these files.

If it all sounds complicated, yes, that's the point. The semantic parsing of what's happening in the transfer of music is at issue in this case, and it gets to the core copyright question, "What is a copy?"

That's an issue that the 2nd Circuit struggled with answering in the 2008 "Cablevision" case, where Hollywood studios attempted to shut down a DVR service that allowed users to store TV programming remotely.

In that decision, the justices examined the transitory duration of data buffering and whether works are "fixed" in a tangible medium, and expressed some skepticism with studio arguments about copies being made along the way. But the 2nd Circuit handed Cablevision a win mostly on grounds that its remote DVR was merely acting at the behest of its users.

Sensing a threat to the Cablevision holding, Google now wants to submit an amicus brief that urges the judge to do a few things: First, preserve a service provider's limited liability for operating a service that permits users to make copies; Second, confirm that transmissions of copies aren't "public" performances; Third, support "fair use" of copyrighted material; And lastly, be careful about giving copyright holders too much power on the distribution front (like, for example, ruling the "first sale doctrine" totally out of bounds in the digital context.)

Google says that it isn't taking a position on the merits of the case; merely looking to protect the $41 billion cloud computing industry. The web giant is urging the court to reject a motion for preliminary injunction without addressing the "complex and profound legal issues."

Capitol says, mind your own business.

In response to Google's brief, Capitol argues that none of Google's concerns is remotely justified as the plaintiff is not challenging a person's right to have a "private locker" or make any acts of "space shifting." The company concludes its letter to the judge by saying:

"This case is neither difficult, complicated, nor laden with the broad policy issues Google suggests. ReDigi is a profiteer, trying to earn money by processing sales of infringing copies of Capitol's sound recordings. Accordingly, Google's motion to participate as amicus curiae should be denied."

Late yesterday, a judge denied Google's amicus brief, saying "the parties are fully capable of raising these issues themselves."


Twitter: @eriqgardner