Wait, Can You Resell a Digital Music File? – Exploring the First Sale Doctrine

With the launch of ReDigi, a website that “recycles” digital music files by allowing people to buy previously owned music downloads for cheaper prices than via online retailers, the RIAA and the Big Four record companies have had a major reaction.

The RIAA and the Big Four have expressed their concern to ReDigi, issuing the company a cease and desist letter.  ReDigi’s business model brings up a hot topic that has been circulating within the e-book, e-music and online gaming communities: the applicability of the Copyright Act’s First Sale Doctrine to digital files.

Under the section 109(a) of the Copyright Act:

…the owner of a particular copy or phonorecord lawfully made under this title, or any person authorized by such owner, is entitled, without the authority of the copyright owner, to sell or otherwise dispose of the possession of that copy or phonorecord.

Under the First Sale doctrine, music fans can typically sell, trade or otherwise dispose of music, and the copyright owner does not have the right to recoup a royalty from the subsequent transfer.  In the physical form, this is easy to understand: you buy a vinyl record and later sell it to a friend, and the copyright owner cannot say anything about the transaction.

In the digital space, however, the First Sale Doctrine is much different.  To begin, digital music files are typically distributed to listeners via license agreements.  These licenses usually prohibit the listener from transferring the file to others and limits the amount of devices on which the listener can play the file.

Even when the listener obtains more than a license when buying digital music files, the First Sale Doctrine is difficult to apply.  Going back to physical music purchases, listeners give possession of the actual phonorecord (i.e. vinyl record, CD, etc.) to the transferee – the person buying the album.  In the case of ReDigi, and similar services, the company makes a copy of the original music file, and then deletes the original file  from the listener’s computer.  In such an instance, ReDigi never takes possession of the original file.

In this situation, the listener is giving up possession of the original music file by deleting it. However, ReDigi is not gaining possession of the original; ReDigi is gaining a copy of the original, which is typically disallowed under the Copyright Act.  Another concern revolves around the adequacy and legitimacy of the security measures that are in place to ensure the deletion of the original music file from the listener’s computer.

The applicability of the First Sale Doctrine is also sketchy when it comes to music files because of illegal downloading.  The First Sale Doctrine only applies to legally obtained copyrighted works.  Since illegal downloading is extremely widespread, there are few – if any – methods that can ensure that a listener has obtained the music file legally. As such, a listener will likely have insufficient proof showing that he or she legally purchased the particular music file, and will therefore have a difficult time gaining protection under the First Sale Doctrine.

Services such as ReDigi can also set listeners up for potential copyright infringement liability if the First Sale Doctrine does not come into play.  Under section 106 of the Copyright Act, copyright owners have the exclusive right “to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership.”  Without the First Sale Doctrine coming into play, listeners who use ReDigi or similar services will themselves be engaging in infringing activity by distributing copyrighted works without the authorization of the copyright owner.

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3 thoughts on “Wait, Can You Resell a Digital Music File? – Exploring the First Sale Doctrine

  1. Read Deanna’s Disclaimer…….clearly this is just what she says: “reflects her own opinion.” It will be interesting to see how this plays out in the court room. How can iCloud store all your music without making a copy? Is this not a similar problem? If the technology proposed by a Redigi fundamentally does protect the property of the artist, provide an additional revenue stream to that artist (unlike resale of used vinyl or physical CDs), shouldn’t this be a win for everyone? It is more big content provider power play.

    • I agree with your first sentence. How dare she say she “reflects her own opinion” then give her own opinion! Next time she should blog about the way you feel. That would make more sense. I have such a hard time with bloggers thinking on their own and not with the crowd, or in your case specifically you. She should erase her article and post your opinion because clearly reflecting her own opinion on her blog is idiotic.

  2. Dear Keepopinionofothers, sarcasm isn’t your forte. I too have such a hard time with bloggers thinking on their own and not with the crowd. How did I do? My question to you: Why is there a “Leave a Reply” section in a blog? I guess it is only for those who only agree with the blogger. Thanks for making such a strong case for free speech and open debate in public. Have you investigated current legislation that is currently being rammed through our legal system and driven by the content providers? Please do so. I think you will find it interesting to see the direct and relevant tie to this conversation. Her blog is good. Your comments are non-value add.

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