The Second Circuit Shuts Down Resale of Digital Music Files in Capitol Records, LLC v. ReDigi, Inc., Lexology, December 18, 2018

Weil Gotshal & Manges LLP - Samuel J. Zeitlin and Bruce Rich, Lexology; The Second Circuit Shuts Down Resale of Digital Music Files in Capitol Records, LLC v. ReDigi, Inc.

 

"If you purchase a copy of music in physical form--like a CD or vinyl record-- you own your copy even though you do not own the underlying songs. Although the law reserves to the copyright owner the right to make more copies, she cannot stop you from selling your copy or giving it away. This rule is called the right of first sale, and it enables all secondhand sales of copyrighted material, from the smallest used bookstore to eBay and Amazon Marketplace. The right of first sale began as judge-made law in the early 20th century, and today is part of the copyright statute at 17 U.S.C. 109(a). In technical terms, Section 109(a) creates an exception for the owners of legal copies to the copyright owner's exclusive right to distribute her work, although not to her exclusive right to reproduce her work.

 

But what happens if you purchase a digital music file? Digital copying unravels the balance between the rights of copyright owners and customers set by the first sale doctrine. Section 109(a) only allows the owner of a copy to distribute it, not to make more copies. In a digital environment, however, distributing a file is done by making a copy of that file in a new location. When the distinction between copying and distributing collapses, is it still possible to exercise the right of first sale?

 

The Second Circuit has just confronted this issue in its December 12, 2018 ruling on the legality of ReDigi, an online marketplace designed to let people resell digital music files purchased from iTunes. In a unanimous decision in Capitol Records, LLC v. ReDigi, Inc. penned by the Second Circuit's preeminent copyright expert, Judge Pierre Leval, the court upheld the conclusion of the district court that ReDigi's business model violated the law."

Controlled Digital Lending Concept Gains Ground; Library Journal, November 15, 2018

Matt Enis, Library Journal; Controlled Digital Lending Concept Gains Ground

"A White Paper on Controlled Digital Lending of Library Books, by Courtney and coauthor David R. Hansen, associate university librarian for Research, Collections and Scholarly Communications, Duke University Libraries, was written in support of the position statement, and delves further into “the legal and policy rationales for the [CDL] process…as well as a variety of risk factors and practical considerations that can guide libraries seeking to implement such lending…. Our goal is to help libraries and their lawyers become more comfortable with the concept by more fully explaining the legal rationale for controlled digital lending, as well as situations in which this rationale is the strongest.”

The white paper notes that the Internet Archive’s “CDL-like” system has been in operation for eight years, and that the Georgetown Law Library operates a CDL service. But for the library field, the concept is still relatively new.

“This is how things start,” said [Kyle K. ] Courtney [copyright advisor for Harvard University]. “You put out a position statement, you back it up with a white paper, and you see the conversations that happen.” As libraries establish programs and platforms, use cases and best practices begin to emerge."

Current copyright regime makes entertainment industry boring; The Daily Texan, June 18, 2017

Usmaan Hasan, The Daily Texan; Current copyright regime makes entertainment industry boring

"The current system of copyright and intellectual property protections quells artistic expression gives consumers the short end of the stick.

Mickey Mouse, as a property of Disney, enjoys bipartisan support in Congress. He was created in 1928, and under the existing copyright regime of the time, Disney’s right to Mickey should have ended in 1956 at the soonest, 1984 at the latest. Yet with some Disney magic, without fail, Congress expands copyright protections every time the Mickey is about to lapse into the public domain.

The hypocrisy coming from Disney is staggering. It has gained its immense wealth by monetizing properties in the public domain – like Cinderella, a centuries old fairy tale owned by no one – lobbying for copyright protections for those properties, and then reworking properties while constantly expanding the lifetime of their protections. It is a company that has managed to exercise artistic reinterpretation of cultural touchstones while making it nearly impossible for others to do the same. In fact, Disney has made its wealth by making movies on at least 50 works in the public domain."

U.S. Patent and Trademark Office News, 1/28/16

U.S. Patent and Trademark Office News:

"A report issued today by the U.S. Department of Commerce recommends amendments to copyright law that would provide courts with both more guidance and greater flexibility in awarding statutory damages.

In its "White Paper on Remixes, First Sale, and Statutory Damages," the Department’s Internet Policy Task Force (IPTF) sets forth its conclusions on three important copyright topics in the digital age: (1) the legal framework for the creation of remixes; (2) the relevance and scope of the “first sale doctrine;” and (3) the appropriate calibration of statutory damages in the contexts of individual file sharers and secondary liability for large-scale infringement.

The White Paper recommends amending the Copyright Act to incorporate a list of factors for courts and juries to consider when determining the amount of a statutory damages award. In addition, it advises changes to remove a bar to eligibility for the Act’s “innocent infringer” provision, and to lessen the risk of excessive statutory damages in the context of non-willful secondary liability for online service providers...

This new report follows up on issues first discussed in a 2013 IPTF Green Paper, "Copyright Policy, Creativity, and Innovation in the Digital Economy," and is the product of two sets of written comments and five public meetings and roundtables conducted through the following year.

The IPTF is made up of representatives from the United States Patent and Trademark Office (USPTO), The National Telecommunications and Information Administration (NTIA) and other Commerce Department agencies.

The White Paper and additional background information can be found online at: www.uspto.gov/copyright-white-paper-2016."

Apple and Amazon Take Baby Steps Toward Digital Sharing; New York Times, 9/18/14

Molly Wood, New York Times; Apple and Amazon Take Baby Steps Toward Digital Sharing:

"In the physical world, you can share a book or DVD or CD that you bought with as many friends and family as you like. You can even sell those items if you want, thanks to the first sale doctrine.

But digital media has been excluded from that doctrine, because, essentially, when you buy a digital song or movie or book, you’re being granted a license to use that media, but you don’t actually own it.

As a result, there are far more restrictions on what you can do with an MP3 than on what you can do with a CD...

So, while Family Sharing and Family Library seem like a victory at first, “to me, this is really a failure of our copyright law,” said Corynne McSherry, who heads intellectual property policy research at the Electronic Frontier Foundation.

“It presupposes that the content owners should be able to have that kind of control over what they buy,” she said. “Copyright law isn’t changing with our times, because what doesn’t change is that people want to be able to give someone a copy of a book or song that they legally bought.”

“The fact is,” Ms. McSherry said, “that we need Amazon or Apple to have elaborate license agreements in order to make it possible for their customers to be able to do what they should be able to do anyway.”"