The Association of American Publishers (AAP) has filed an amicus curiae brief in Capitol Records, LLC v. Redigi, Inc., an important copyright case concerning whether 'used' creative digital content can be resold in the online environment. AAP has urged the U.S. Court of Appeals for the Second Circuit to affirm the district court's decision, which found no plausible legal interpretation under the Copyright Act that would permit a company to reproduce and resell digital music files without a license. In addition to rejecting application of the 'first sale' doctrine under Section 109 of the Act, the district court found that all four factors of fair use under Section 107 weighed against the defendant ReDigi which has appealed the decision.
In its brief, the AAP notes that the rapid growth of digital publications (including eBooks, professional and scholarly publications, and adaptive educational content) make the threat of Redigi's business activities to publishers and their markets 'not hypothetical.' AAP explains the critical interest of publishers in ensuring that federal courts apply the first sale doctrine as a defense against infringement pursuant to the plain meaning of the statute, which limits application of the defense to situations where the owner of a lawful copy of the copyrighted work embodied in a tangible "material object" chooses to distribute that particular copy. The owner of the lawful copy cannot assert the defense if distribution of the work is achieved by reproducing the copy.
AAP cites to the clear reports of both the U.S. Copyright Office and the U.S. Commerce Department, in 2001 and 2016 respectively, which concluded that the ability of a consumer to resell a purchased copy or lend it without restriction applies only to tangible property, and that extending the first sale doctrine to digital transmissions would carry risks to copyright owners' primary markets.
In its brief, AAP takes care to distinguish the carefully calibrated fair use decisions of the Second Circuit in the Authors Guild, Inc. v. Google, Inc. and Author's Guild, Inc. v. HathiTrust cases, which present no basis for claiming that ReDigi's unfettered digital copying for the purpose of commercial resale constitutes fair use. AAP also objects strongly to the assertion of the American Library Association in its amicus curiae brief that the Court should observe similarities between Redigi and certain "digital lending services," including the Internet Archive's Open Library. AAP explains that such services are a "potentially even greater" threat to the legitimate markets of publishers.
The amicus brief is available at https://presspage-production-content.s3.amazonaws.com/uploads/1508/briefofamicuscuriaeassociationofamericanpublishers.pdf?10000.
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