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Los Angeles Copyright Infringement Lawyer | Resellers of Digital Goods Not Protected by First Sale Doctrine, Judge Says

  • By: Robert Klein

We noted in a blog post last week that the recent US Supreme Court decision in Kirtsaeng v. John Wiley & Sons, Inc. held that the first sale doctrine—a section of copyright law that allows an individual who purchases a copy of a copyrighted work the right to sell that particular copy—applies regardless of where the copy is manufactured. However, less than a fortnight after the Supreme Court issued that decision, a federal judge in New York ruled that the first sale doctrine does not allow people who buy digital goods to resell those without the copyright holder’s permission.

The technology magazine Wired reported that US District Judge Richard Sullivan declared a website enabling the online sale of pre-owned digital music files was unlawful. Major American record label Capitol Records sued ReDigi, a website that provides a platform to buy and sell used MP3s that were lawfully purchased through iTunes, alleging copyright infringement.

“The novel question presented in this action is whether a digital music file, lawfully made and purchased, may be resold by its owner through ReDigi under the first sale doctrine. The court determines that it cannot,” the judge ruled. “Because the reproduction right is necessarily implicated when a copyrighted work is embodied in a new material object, and because digital music files must be embodied in a new material object following their transfer over the internet, the court determines that the embodiment of a digital music file on a new hard disk is a reproduction within the meaning of the Copyright Act.”

This decision is a reminder that the first sale doctrine is not limitless in its protection, and it specifically cannot be used as a defense in cases involving unauthorized reproductions of a copyrighted work. As Wired noted, it remains to be seen whether Sullivan’s decision will withstand appellate scrutiny, and online retailers such as Amazon and Apple have already patented platforms for reselling used digital goods such as books, music, videos and apps. The Economist reported that ReDigi founder John Ossenmacher said that his firm intends to expand to Europe, but noted that it “probably has a legal fight ahead of it there, too.”

The decision is further proof that there remains many areas of copyright law that will have to continue to be addressed as technology evolves. Many consumers as well as businesses do not fully understand their rights as they relate to selling digital media. Los Angeles business litigation attorney Robert G. Klein has been handling complex copyright claims for over a quarter-century, and you can learn more about intellectual property litigation by visiting our website. If you need help with any type of intellectual property claim, complete the form on this page or contact our firm at (323) 405-1002 to have our Los Angeles copyright infringement attorney review your case.

Klein Trial Lawyers – Los Angeles business litigation lawyers

Quick Klein Extra: DVD region codes are one form of digital rights management that allows content creators and copyright owners to effectively prevent consumers from purchasing the goods at lower prices in other markets. There are six different official regions plus two informal variations, and DVDs may use one code, a combination of codes, every code or no codes.

Robert Klein

About the Author Attorney Robert Klein is a former CPA and known for
finding creative solutions to complex business lawsuits.