Selling used iTunes tracks? ReDigi insists it's legal

ReDigi, the company that calls itself "your favorite pre-owned record store, however for digital music files," is pushing back against a massive copyright infringement lawsuit launched by Capitol Records. In its answer to the complaint, ReDigi's lawyers insist that Capitol's core argument is false; no "copying" takes place in the resale process that ReDigi facilitates between buyers and sellers of digital tunes.

"Along these lines, even if ReDigi's software and system works as described by ReDigi, ReDigi would nevertheless be liable for copyright infringement," RIAA's letter warned. Stop what you are doing, the group demanded, quarantine the site and hand over "an accounting of all sales achieved and revenue generated" from RIAA member sound recordings through the ReDigi service, "so that we can discuss a resolution of our Members' claims."

The equivalent of a used record store

"During ReDigi touts its service as the equivalent of a used record store, that analogy is inapplicable," the suit contends. "Used record stores do not make copies to fill their shelves. ReDigi is to tell the truth a clearinghouse for copyright infringement and a business model built on widespread, unauthorized copying of sound recordings owned by Plaintiff and others."

So we checked in with IP attorney Rick Sanders, who in a review of ReDigi predicted that the firm might offer a fair use argument in a lawsuit. Sanders emphasized that he doesn't know how ReDigi plans to elaborate on this in court, nevertheless the generic fair use case is pretty straightforward. "In order to make anything we have to make copies of it," Sanders noted. Along these lines, research companies have "generalized fair use principles to make intermediate copies in order to exercise some right that they have been given." In such a case, that would be the right of resale based on the First Sale doctrine.

ReDigi as well defends its use of 30-second sample streams, which are provided by an "outside, licensed provider," the company notes, and adds that it offers no public streaming itself. Nevertheless between the fair use and essential step questions, there will plenty for the court to grapple with.