EMI waited two months after the RIAA asked ReDigi to remove its members’...

digital music reseller told Judge Richard Sullivan (http://xrl.us/bmpy6i). ReDigi cited the controlling precedent of the 2nd U.S. Circuit Court of Appeals that “the failure to act sooner undercuts the sense of urgency that ordinarily accompanies” an injunction motion, “and suggests that there is, in fact, no irreparable injury” to the plaintiff. EMI has known about ReDigi for two years “and even encouraged” its business model, ReDigi said. The label’s claim that it might not be able to calculate the damage to its business from ReDigi is irrelevant because, if the label wins, “an award of statutory damages would make them more than whole,” ReDigi said. The service also keeps detailed records of purchase and sale transactions, so EMI would be able to calculate actual damages if it wins its infringement claims, ReDigi said. On balance, ReDigi would suffer more from an injunction than EMI would from waiting for a full accounting of ReDigi’s alleged liability, the service said: “ReDigi is out of business,” while EMI “loses some money.” ReDigi compared itself to the remote-DVR function at issue in the 2nd Circuit’s ruling in favor of Cablevision, saying it only streams music to the user who uploaded it or the user who purchased that song, not “the public” at large. Uploading to a cloud locker is nothing more than the latest iteration of “space-shifting,” which has been blessed by the Supreme Court and even the music industry, ReDigi said, citing oral argument in the Grokster case. Its service is similar to Google Music or Amazon Cloud Drive, with the pertinent distinction that ReDigi “takes the additional step of searching for and removing ... any other instances of the file” on the user device from which it’s uploaded. A finding against ReDigi would “put the future of all cloud storage services in doubt,” it said. For the first time in a filing, ReDigi cited the relevant terms of service in iTunes that justify ReDigi’s first-sale argument: “[T]itle for all electronically delivered transactions pass to the purchaser in California upon electronic transmission to the recipient.” The iTunes terms never suggest the purchase is a “mere license” to the music file, and former Apple CEO Steve Jobs said when iTunes launched that people want to “own” their music as downloads. ReDigi said RIAA’s cease-and-desist and EMI’s suit have already taken a toll on its business: The “fledgling startup” employs fewer than 15 people and it has become “difficult or impossible” to enter new relationships with other companies or find investors.