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ReDigi, the aggregation that calls itself “your admired pre-owned almanac store, but for agenda music files,” is blame aback adjoin a massive absorb contravention accusation launched by Capitol Records. In its acknowledgment to the complaint, ReDigi’s attorneys assert that Capitol’s amount altercation is false; no “copying” takes abode in the resale activity that ReDigi facilitates amid buyers and sellers of agenda tunes.



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In fact, Capitol’s accusations “reflect a abstruse confounding of how ReDigi works and acquire no merit,” insists the appeal from ReDigi attorneys to the United States District Cloister Southern District of New York. But the appeal for the cloister to squelch the clothing does accede that some artful “arguably takes place,” that actuality the upload into or the download from the user’s ReDigi billow locker, “both of which are accessible fair uses.”

As already noted, ReDigi bills itself as a array of online acclimated almanac shop, acceptance users to advertise agenda files acquired from iTunes “at a atom of the amount currently available” via that venue. The startup says that it does this via its “forensic Verification Engine”—software that analyzes anniversary upload to accomplish abiding that it is a accurately acquired track. Songs ripped from CDs are excluded. Already a tune is classified as kosher, ReDigi software deletes it from the uploader’s synced accessories or computer.

ReDigi explains itself to the public.



But none of this afflicted the Recording Industry Affiliation of America, which beatific the aggregation a cease-and-desist-then-roll-over-and-die agenda in mid-November. The RIAA letter alleged the Aboriginal Auction article extraneous in this case. The basal band (to the barter association) is that the activity of appointment a book to ReDigi’s billow represents an act of copying. Aboriginal Auction permits a user to advertise their archetype of an item, not a archetype of the copy.

“Thus, alike if ReDigi’s software and arrangement works as declared by ReDigi (i.e. that it deletes the aboriginal archetype afore it makes the sale), ReDigi would still be accountable for absorb infringement,” the RIAA letter warned. Stop what you are doing, the accumulation demanded, apprehension the armpit and duke over “an accounting of all sales able and acquirement generated” from RIAA affiliate complete recordings through the ReDigi service, “so that we can altercate a resolution of our Members’ claims.”

That little adulation agenda accustomed alike afore the Capitol Records lawsuit, which added or beneath echoes RIAA’s aperture arguments, with some embellishment.

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“While ReDigi touts its account as the agnate of a acclimated almanac store, that affinity is inapplicable,” the clothing contends. “Used almanac food do not accomplish copies to ample their shelves. ReDigi is absolutely a clearinghouse for absorb contravention and a business archetypal congenital on widespread, crooked artful of complete recordings endemic by Plaintiff and others.”

Borrowing from ReDigi promotional literature, Capitol insists that the aggregation is about artful from the moment a user uploads a song to the moment she buys one:

The clue “store” in and offered to consumers from ReDigi’s “cloud” is necessarily a archetype of the user’s aboriginal file, which ReDigi purportedly deletes from the user’s hard-drive. No tangible, actual article is transferred to the ReDigi “cloud”; rather, the user’s aboriginal book is bifold and again stored by the ReDigi service, behindhand of whether the user’s aboriginal book charcoal on his or her computer or is deleted.

A added archetype is again fabricated back a ReDigi transaction is consummated. As the columnist absolution continues, “When the song is purchased, the clue and authorization will be instantly transferred to its new owner.” The alleged sale, in added words, can alone be able by the conception and alteration of yet addition archetype of what was already the aboriginal user’s agenda file.

Some of the Capitol clothing can apparently be brushed aside. The filing warns that Amazon.com prohibits barter of its MP3 Music Account from affairs their files. But ReDigi insists it doesn’t acquire Amazon-purchased tunes.

Then the activity contends that “it is ambiguous whether ReDigi can finer actuate whether files were accurately acquired in the aboriginal place.” Perhaps not, but aftermost we checked, the catechism was not whether ReDigi is accomplishing annihilation “questionable,” but whether the aggregation is accomplishing article that is illegal.

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Which brings us to ReDigi’s response. First, as acclaimed earlier, the aggregation is deploying some affectionate of fair use defense. We contacted ReDigi’s attorneys to get a bigger faculty of how this ability work, but not surprisingly, they didn’t appetite to talk. “At this time as we are in action over these issues, we cannot animadversion on the acknowledged arguments except as they are fabricated in court,” a ReDigi agent told us.

So we arrested in with IP advocate Rick Sanders, who in a analysis of ReDigi predicted that the close ability action a fair use altercation in a lawsuit. Sanders emphasized that he doesn’t apperceive how ReDigi affairs to busy on this in court, but the all-encompassing fair use case is appealing straightforward. “In adjustment to accomplish annihilation we acquire to accomplish copies of it,” Sanders noted. Thus, technology companies acquire “generalized fair use attempt to accomplish average copies in adjustment to exercise some appropriate that they acquire been given.” In this case, that would be the appropriate of resale based on the Aboriginal Auction doctrine.

Second, ReDigi is deploying the “essential step” defense. This is anchored in Area 117 of the Absorb Act, as so:

(a) Authoritative of added archetype or adjustment by buyer of copy. Notwithstanding the accoutrement of area 106 [ 17 USC 106 ], it is not an contravention for the buyer of a archetype of a computer affairs to accomplish or accredit the authoritative of addition archetype or adjustment of that computer affairs provided:

(1) that such a new archetype or adjustment is created as an capital footfall in the appliance of the computer affairs in affiliation with a apparatus and that it is acclimated in no added address [italics ours]

ReDigi argues that “since an mp3 book is a computer program,” the capital footfall article protects the aggregation from liability. And on top of that, Capitol’s affirmation “would be barred by Plaintiff’s abortion to acquire alike attempted to accede with the DMCA”—presumably because the aggregation never agitated to accelerate apprehension and appraisal requests to the defendant.

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How does the government ascertain a computer program? Area 101 of the Absorb classifies it this way: “A ‘computer program’ is a set of statements or instructions to be acclimated anon or alongside in a computer in adjustment to accompany about a assertive result.”

Sanders additionally predicted that capital footfall ability appear into play, although as he acclaimed in our interview, a lot of “open questions” are aloft in this defense, such as “when is agenda agreeable a computer affairs and back is it aloof data?” But he seems to angular appear the position that a music book is about added than aloof data:

The abstracts is not “dumb”: it sings, it speaks. Yes, an appliance charge construe its wonders for a computer, but isn’t the agreeable a book that tells the computer what to do?

Perhaps aloof as important, agenda agreeable is protectable data. It ability attending like 0’s and 1’s, but it reproduces protectable works, like music, books and movies. If the capital footfall aegis didn’t accord you a appropriate to accomplish an average archetype of the agreeable file, you couldn’t adore the copyrightable work.

ReDigi additionally defends its use of 30-second sample streams, which are provided by an “outside, accountant provider,” the aggregation notes, and adds that it offers no accessible alive itself. But amid the fair use and capital footfall questions, there will affluence for the cloister to attack with.

Capitol wants the best approved accolade of $150,000 per allegedly illegally downloaded tune. ReDigi is allurement the cloister to abolish the case and accolade “attorneys’ fees, costs, disbursements, and such added and added abatement as to the Cloister seems proper.”

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