ReDigi and the Purpose of First Sale

Cross-posted from PrawfsBlawg

For now, at least, ReDigi lives. Judge Sullivan denied the preliminary injunction, but according to the transcript, on irreparable harm grounds rather than a lack of likelihood of success on the merits. The case is set for rapid progress towards trial, quite possibly on stipulated facts.

I’d like to take up one of the central questions in the case: first sale. Whether you think ReDigi ought to win certainly turns on your view of what first sale is for. So too, may the legal merits. How you interpret statutory text like “owner” or “sell” may depend on on your theory of what kinds of transfers Congress meant to protect. And even if ReDigi’s particular form of transfer falls outside of the text of first sale itself, the arguments for and against fair use can draw on first sale principles. Here, then, are some competing theories:

  • Conservation of copies: Copyright is fundamentally copy-right: the ability to prevent unauthorized copying. Practices that don’t increase the total number of copies in existence don’t fundamentally threaten the copyright owner’s core interests. First sale blesses one of those practices: moving a copy for which the copyright owner has already been paid from one set of hands to another. On this theory, ReDigi is okay because it forces sellers to delete their copy of the music, thereby keeping the number of extant copies constant.

  • Freedom of alienation: First sale protects the rights of owners of personal property against copyright claims that might interfere with their right to use their property as they wish. This idea is sometimes described in terms of “servitudes on chattels” or “exhaustion” of the copyright owner’s rights. We could also think of it as a negotiability regime promoting free transferability of personal property, given the information and transaction costs involved in allowing third-party copyright claims. On this theory, ReDigi is in trouble because it deals in information, rather than in tangible objects.

  • Copyright balancing: First sale is one of a cluster of doctrines that shape the level of control copyright owners have over the market (economic and cultural) for their works. If that balance changes over time, the doctrines should be recalibrated to restore it. Since the reproduction right has expanded to cover all sorts of computer-based uses such as loading a file into memory, the first sale defense should expand to maintain the same rough level of control. On this theory, ReDigi should win, because it would preserve roughly the same levels of freedom for users and control for owners as they had in an analog era.

  • Copyright balancing: Or wait … if the goal is balancing, then perhaps ReDigi should lose. First sale used to be practically restricted by the facts that physical copies wear out and that exchanging physical objects takes time and money. ReDigi would blow those practical limits away, disrupting the first sale balance in the direction of too little control for copyright owners. In the face of rampant illegal file-sharing, why should a court, in effect, legalize the process by allowing ReDigi to serve as a super-low-friction intermediary?

What I love about this case is that it pushes and pulls our intuitions about copyright in so many different directions. It brings up fundamental questions not just about unsettled corners of doctrine, but also about what copyright is for. It offers grist for every mill, food for every kind of thought.

ReDigi would blow those practical limits away, disrupting the first sale balance in the direction of too little control for copyright owners.
Not necessarily —- perhaps I’m a bit more sensitive than usual to this exact topic currently, as I am searching for some files which I seem to have accidentally deleted. The balance you are assuming is broken by moving from the physical to the digital domain is merely a question of rates of physical degradation versus rates of digital losses via disk crashes, forgotten passwords, accidental deletion, corrupted backups, and other digital mishaps.

On the other hand, the reality of the situation is that copyright owners have already lost the degree of control which they had before the digital era. The results of a recent survey of Americans’ position on various forms of copyright infringement and media behavior lead me to suspect, even if I cannot know because that particular question was not addressed, that a strong majority of Americans under the age of 29 would not consider it wrong to illegally obtain material under copyright which they had already paid for, once, but which afterwards had been accidentally deleted.

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