EMI’s Capitol Records asked for a preliminary injunction against ReDigi, the...

of its service. “The ‘used’ music files ReDigi markets, however, are not secondhand, scratched CDs that physically pass from one user to another, but pristine digital files that ReDigi reproduces, stores and distributes without authorization,” EMI said. The U.S. Copyright Office itself has concluded the first-sale doctrine “does not apply to digital transmissions, which by their very nature do not involve the physical transfer of any material object,” the filing said. ReDigi’s video tutorial on its website acknowledges that it has to upload users’ files to offer them for resale to other users, EMI said: “Uploading, by its very nature, can only be accomplished by making an unauthorized copy of the original user’s track. … The user does not ’sell’ that original track but merely agrees to its deletion after it has been duplicated in a copy and that copy transferred, by ‘upload,’ to the ReDigi service.” It’s irrelevant whether the uploading user “simultaneously or subsequently” deletes the file, because “the Copyright Act does not excuse unauthorized reproduction simply because the infringer chooses to destroy the source copy.” EMI used an analog example to make its point: If one person “owned a print of a photograph, allowed the second individual to make a digital scan of it, and then immediately threw the original print into the fire, no one would suggest that the first individual had ’sold’ his print to the second individual.” ReDigi also fails the first-sale test because it’s not the “owner” of the tracks it uploads, and because it doesn’t have the copyright holder’s authorization, “the copies it holds on its ‘cloud’ are not lawfully made copies either,” EMI said. The label also said ReDigi’s streaming of 30-second preview clips to users and display of album artwork constitute infringements. ReDigi had already told Sullivan that the preview clips and artwork are provided by an authorized third-party source “pursuant to license,” and that EMI has a “profound misunderstanding” of the factual particulars of its service (WID Jan 23 p5). Because ReDigi claims it erases files as it transfers ownership from one user to another, “the chain of infringing copies itself is in constant flux,” EMI said: “It thus becomes tremendously difficult to monitor ReDigi’s inventory of files constantly to keep tabs” on what’s being uploaded and downloaded. Without an injunction, EMI won’t have “even a fair chance” of understanding the damage to its business from ReDigi’s service. The label scolded ReDigi for claiming on its website that it “gives back to artists and labels through generous payments with every track sold,” when in fact “Capitol has received no compensation” for its tracks posted on ReDigi. One question EMI’s filing appears to raise is whether ReDigi has found a loophole in the licensing terms governing the songs that it will accept for upload. ReDigi said in its initial answer to EMI, which had the same date as EMI’s request for an injunction, that contrary to EMI’s assertion, it only accepts songs downloaded from iTunes for upload to its cloud and that it’s not violating any terms attached to iTunes downloads. EMI’s initial complaint said Amazon MP3 was “likely the origin of many” tracks on ReDigi, and that Amazon terms “expressly” prohibit transfers of the sort that ReDigi facilitates. In its motion for an injunction, EMI again said ReDigi “encourages those users to violate the terms of certain of their original vendor agreements, such as those imposed by Amazon.com,” and in another reference said “vendors like Amazon … provided those files to users with carefully stated restrictions against redistribution.” EMI’s filings don’t appear to allege any specific violation of iTunes terms by ReDigi, citing Apple’s digital music platform only as a legitimate distributor whom ReDigi is undermining. Sullivan told EMI in a Friday order that it must respond to ReDigi’s letter requesting a pre-motion conference by Tuesday, and that ReDigi must answer EMI’s injunction request by Friday. The judge scheduled a hearing on EMI’s request for Feb. 6, and said he'll consider ReDigi’s summary judgment motion there as well.