”Used” digital music reseller ReDigi has no “colorable” claim to fair use...
"Used” digital music reseller ReDigi has no “colorable” claim to fair use that would excuse its infringements of Capitol Records’ music, Capitol parent EMI told U.S. District Judge Richard Sullivan in New York. The companies have been sparring in separate…
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letters to Sullivan in the past two weeks ahead of a Feb. 6 hearing where he will consider EMI’s request for an injunction and ReDigi’s motion for summary judgment (WID Jan 24 p8). ReDigi’s first distortion is that it’s simply a “cloud storage service,” when its website prominently describes the company as a “marketplace” for purchasing music, EMI said: The service is “no passive participant, but an active consignment retailer.” ReDigi doesn’t come close to qualifying for a fair-use defense, because its uploading of users’ music for resale is purely commercial, sound recordings are “less susceptible to fair use” and ReDigi resells whole songs, and its “euphemistically described ‘used’ files … directly supplant the market” for legitimate song purchases, EMI said. The service also doesn’t qualify for protection under the “essential step” doctrine in Section 117 of the Copyright Act because music files aren’t “computer programs,” copying them isn’t needed for the “utilization” of the files, and ReDigi isn’t the “owner” of the files, the letter said. EMI said it was baffled by ReDigi’s claim that it’s getting the label’s artwork and preview clips from a licensed provider, saying EMI is “unaware of any of its legitimate affiliates” having worked with ReDigi. Perhaps most controversially, EMI said it was under no obligation to use the notice-and-takedown procedure laid out in the Digital Millennium Copyright Act, responding to ReDigi’s claims that its notices were deficient under the DMCA. The DMCA gives “Internet service providers” a defense against secondary liability, but no “affirmative obligations on copyright owners, who may choose to use” its notice mechanism but “are under no requirement to do so.” ReDigi’s summary judgment motion is “destined to fail and redundant” of issues EMI raised in its motion for an injunction, the label said.