EMI hasn’t shown that it will suffer irreparable harm if the...

motion, according to the court transcript (http://xrl.us/bmra2h). EMI had told Sullivan it wouldn’t have “even a fair chance” of understanding the damage to its business from ReDigi without an injunction (WID Jan 24 p8). Sullivan said he let the parties argue for nearly two hours before ruling: “I found it very interesting and very well argued, so maybe that’s why I kept you all as long as I did.” Under the Supreme Court’s standard for injunctions articulated in eBay v. MercExchange, Sullivan said he must deny EMI’s motion. “It seems to me that money damages should be able to take care of all of this” if EMI wins the case, Sullivan said: ReDigi has convincingly argued that it keeps “careful records” from which damages could be calculated. EMI can’t stop ReDigi from operating based on EMI’s fear of market confusion, the judge said: The digital reseller’s “legal theory” to justify its secondhand-sale business model, as espoused in its filings and in public pronouncements, doesn’t meet the controlling 2nd U.S. Circuit Court of Appeals’ standard for confusion. But Sullivan said EMI had “demonstrated that there are arguments that on their face look to be compelling or potentially persuasive arguments,” and that ReDigi’s motion for summary judgment was “premature” because “it’s not clear to me that there are wholly undisputed facts” to which the parties agree. Sullivan suggested he could rule soon: “With limited discovery we should be able to get this teed up for summary judgment or a trial perhaps even on stipulated facts.” According to ReDigi, Sullivan told the parties Monday that the questions prompted by the suit, such as the applicability of the first-sale doctrine to digital files that by nature must be copied to be transferred, were “fascinating,” and raise “a lot of technological and statutory issues.” That portion wasn’t in the transcript. Sullivan told the parties in a formal order to submit a proposed case management plan and scheduling by Feb. 20. The digital reseller trumpeted Sullivan’s rejection of EMI’s argument that it was suffering irreparable harm from ReDigi’s continued operation. “This is an exciting step forward for ReDigi’s and the purchasing public’s fight to keep consumers’ intrinsic and lawful ownership rights to their digital property intact at a time when [EMI’s] Capitol Records is fighting desperately to confiscate these rights,” ReDigi said in its first press release since the litigation commenced (http://xrl.us/bmrahs). It said EMI had “disregard” for ReDigi’s technology, “which clearly works within the parameters of the law” by uploading a user’s purchased music from iTunes into a cloud locker and deleting the original files from the user’s devices. ReDigi CEO John Ossenmacher said the company was “helping consumers unlock billions of dollars of previously unrealized wealth in their digital media collections.” ReDigi is the “bazaar of the future,” where ReDigi’s management of purchasing and selling files “ensures safety, legality and convenience,” said Chief Technology Officer Larry Rudolph. EMI had a different take on Sullivan’s comments at the hearing. The judge “clearly indicated that Capitol had established the likelihood of success on the merits of its copyright infringement claim, calling its legal case for infringement ‘compelling,'” EMI said in a press statement. Sullivan “accepted our legal arguments on the merits of the dispute,” said Alasdair McMullan, executive vice president of legal affairs for EMI Music North America: “We fully expect that ReDigi will ultimately have to answer for its clear acts of infringement."