Supreme Court Will Be Asked to Permit Resales of Digital Music Files

A general view of The United States Supreme Court - July 10, 2018 in Washington, DC. -Getty-H 2018
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ReDigi is now before the U.S. Supreme Court in a legal battle over the reselling of digitized copyrighted works. The company, which attempted to launch an online marketplace for secondhand iTunes songs, has written a letter to Justice Ruth Bader Ginsburg requesting an extension to May 13 to file its cert petition.

"The Petition raises novel and important legal questions about copyright law," writes Brian Lipkin, an attorney at Babst Calland who was recently retained by ReDigi to handle the bid for high court review. "These questions include whether, under the first sale doctrine, a person who lawfully acquires a digital file through the Internet has the right to resell it."

On that question, the Second Circuit Court of Appeals ruled last December that ReDigi was engaging in unauthorized reproduction when transferring digital files from one user to another. Second Circuit Judge Pierre Leval rejected ReDigi's defense that the First Sale Doctrine — which once ushered in an era of used bookstores and secondhand record shops — provided cover for ReDigi's business as the process of transferring digital files necessitates the making of copies of original works. Leval did attempt some middle ground by suggesting in his opinion that files might be placed on a thumb drive for resell, but many legal observers nevertheless see the decision as striking an arrow in the heart of the First Sale Doctrine in the digital era.

A petition to the Supreme Court was hardly certain for ReDigi, which declared bankruptcy after a loss at a trial court and then had its business model usurped to some extent by the rise of streaming platforms like Spotify and Apple Music. Nevertheless, if the Supreme Court tackles the ReDigi case, it would be of significance. For example, book authors have recently gone on attack over library e-lending practices and the Internet Archives’ Open Library project — and have cited the Second Circuit's ReDigi opinion for support that copyright holder permission is required for the public borrowing of e-books.

In his letter to Ginsburg, Lipkin writes that the extension will also give time for other interested parties to file briefs in connection with ReDigi's petition. At the 2nd Circuit, the case drew amicus briefs from the Motion Picture Association of America, the Recording Industry Association of America, the Internet Archive, the American Library Association and quite a few intellectual property scholars.

The Supreme Court grants just a fraction of petitions, though when the ReDigi case got argued before the Second Circuit in August 2017, Leval himself commented the case had a "high likelihood" of being taken up by the Supreme Court.