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My iTunes collection is a petri dish of impulse purchases that I have grown to regret – this past December, for example, I decided that I just had to have a “finals week playlist” consisting entirely of Savage Garden and Celine Dion songs. I hit repeat on that playlist more times than I care to share…but when I emerged from my finals stupor, I was struck with a bad case of buyer’s remorse.
The brains behind the internet start-up, ReDigi, recognized that many of us (including yours truly) have unwanted music cluttering our hard drives. They came up with an inventive way to deal with those downloads that, while once cherished, have long since lost their luster. By applying the rules of physical sales transactions to the digital world, they created a virtual swap meet for iTunes purchases.
Users can store their music in a “cloud”, sell the songs they no longer listen to, and “revamp” their collections with new tunes. Touting itself as a “legal alternative” to file sharing, ReDigi only accepts music that was legimately purchased from iTunes; and once you sell a song, you can never access it again.
Still, as you can imagine, not everyone is head over heels about this secondhand music market. Last month, Capitol Records sued ReDigi in a New York federal court, claiming that the website was liable for contributing to copyright infringement. According to the complaint, “ReDigi is actually a clearinghouse for copyright infringement and a business model built on widespread, unauthorized copying of sound recordings owned by Plaintiff and others.” Sound familiar?
Capitol Records v. ReDigi raises the question of whether it is possible to have a legal online marketplace for pre-owned digital music. Specifically, the case will force the court to grapple with the applicability of the first-sale doctrine to digital goods like iTunes songs. Under first-sale doctrine, a legitimate buyer of a copy of a copyrighted work has the right to re-sell, lend or dispose of that copy as they wish. However, iTunes consumers are mere licensees, not owners, of the digital files they download. It will be interesting to see how this fact might complicate the legal analysis of first-sale doctrine here. The 9th Circuit waded into this area in the context of software in Vernor v. Autodesk, and now this case presents a similar fork in the road for digital music.
As someone who frequently falls victim to the iTunes vortex, downloading songs I know I cannot make a lifetime commitment to, I hope the court recognizes the possibility for this marketplace. Why should my old Ricky Martin files rot away in the graveyard of music that I have outgrown? I know there is some sorry soul, probably studying for a midterm somewhere, who could really use some La Vida Loca right about now. Why shouldn’t I be allowed to sell that little slice of heaven to them?
– Joanna Collins
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