Well, speak of the devil.
Yesterday, I posted an entry about why digital resale for ebooks and music after the fashion of ReDigi was unlikely to work. Today, I learned that a three-judge panel of the Second Circuit Court of Appeals has just reaffirmed the 2013 lower court decision shutting ReDigi down.
The court found that, no matter how much ReDigi tried to make its service look and act like analog sale, the digital nature of the process still violates the law as it is currently written. The law prohibits making unauthorized copies, and the process of moving digital files from one computer to another necessarily causes copies to be made. The law might be behind the times, but the court held that the degree of change necessary to permit digital resale would require an act of Congress to modernize it. It wasn’t something the court was willing to do unilaterally.
The court panel included Pierre Leval, who codified the four-factor fair use test now widely used in copyright litigation, and who helped find Google Books to be a legal fair use. If ReDigi’s digital resale model wasn’t going to be sufficient to win him over, there’s probably no hope for it. (Though as I mentioned last time I wrote about this, Leval would have liked the chance to consider ReDigi’s newer model that would interpose ReDigi between the digital store and the customer’s computer for purposes of the sale.)
It’s unclear whether the bankrupt ReDigi will be able to appeal the case further, or whether the Supreme Court would even be willing to take the case if it did. It’s also unclear whether any effort to convince Congress to change the laws would work, given the amount of pull content owners have. It seems unlikely the same companies that shoved 75-year copyright terms down our collective throats would willingly cut their own throats by allowing digital resale to get off the ground.
So, for now, the status quo remains unchanged: if you truly want to own your media and be able to resell it legally, you’d best buy it ensconced in physical artifacts—Blu-rays and DVDs, compact disks, and, of course, paper books. The first sale doctrine’s applicability to digital media remains sharply limited, and probably will for the foreseeable future.
FYI: ReDigi didn’t shut down in 2013; they tweaked their platform to comply with the ruling.
they even got a patent:
A nitpick: Judge Leval didn’t create the four factor fair use test. That’s codified in the statute. What he did do was create the “transformative” criterion, that if a use of content transforms the content in some way, it could be fair use. He did this in part by *interpreting* the four factors, as one has to do when doing fair use analysis, and as he did again in the ReDigi appeal. Since he created it, the “transformative” standard has been applied to many landmark cases like Campbell v. Acuff-Rose, a/k/a the “2 Live Crew” case.