When you purchase music, films or podcasts through digital means, you have legally purchased a copy of that recording for you to enjoy. Similarly when you go into a music shop and purchase a CD or a DVD, you have legally purchased a copy of that recording. If you no longer wish to keep the CD or DVD, you are able to sell on your copy through various means.  Alternatively, if you no longer wish to keep your digital copy and want to sell your copy on, it is unclear about how you go about doing this? And more importantly, whether you legally entitled to do this?

ReDigi are an American company who have launched a business model whereby you can sell or buy pre-owned music, owned in a digital capacity.  Their software works in a way which permanently deletes the copy from the previous owner’s hardware to ensure it is not copying but in fact a transfer of that digital copy. This business model has been subject to extensive opposition and as a result EMI, the large recording and publishing company has brought legal action in America against ReDigi on the basis that such a business model is an infringement of copyright.

EMI has based its case in America on the grounds that the “first sale doctrine” does not apply to digital media. ReDigi, do not agree with EMI’s assertions and contend that they are protected by the “first sale doctrine”. The “first sale doctrine” is a concept whereby the owner of the copyrighted product has a right to distribute that product. Where the product is lawfully sold, the distribution right held by the owner of the copyright will be exhausted, thus affording the purchaser the freedom to dispose of the product as they wish.

In Europe, the courts have recently addressed this issue in the case of UsedSoft. This case concerned the reselling of software contained in a digital format. It was held in this case that the owners of the software exhausted their rights to control resale after they initially sold them in the EU. This principle applied regardless of whether the copyright material was a physical product or a digital product. It will be interesting to see whether the American courts adopt a similar approach.

EMI have also raised objections to the mechanics of reselling digital music, stating that duplicates will need to be made to achieve a sale. EMI have said that the creation of duplicates and the difficulty in ensuring that the original file is deleted may result in breach of copyright and therefore they object to such a business model. The European Courts held in UsedSoft, that there would not be a copyright infringement where the copies held by the reseller were permanently deleted. This seems to make clear sense in theory but ensuring that this happens in reality may be incredibly difficult. EMI seems to think this is not something ReDigi can ensure happens, but it may just be the case that ReDigi have simply found the answer?

With the sales of digital music on the increase, and the clarity this case could provide on the copyright infringement of digital products, this decision is eagerly awaited by both the music industry and the legal profession. Although this in an American case, the decision will help to provide clarity on whether digital music can be resold without infringing copyright here in the UK.