Judge rules against ReDigi, making Amazon used e-books more likely

Judge rules against ReDigi, making Amazon used e-books more likely

Judge Richard J. Sullivan has decided against ReDigi, which runs what amounts to a used digital music service:

“However, here, the Court cannot of its own accord condone the wholesale application of the first sale defense to the digital sphere, particularly when Congress itself has declined to take that step. Accordingly, and for the reasons stated above, the Court GRANTS Capitol’s motion for summary judgment on its claims for ReDigi’s direct, contributory, and vicarious infringement of its distribution and reproduction rights. The Court also DENIES ReDigi’s motion in its entirety.”
—Memorandum and Order

I haven’t read the entire M&O yet, but I figured many of you might be seeing this this morning and I thought you might appreciate my opinion on it.

The first thing to say is that this isn’t necessarily the end of the case…ReDigi can appeal this ruling from the

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

and it could go to the Supreme Court eventually. The Judge has asked for a joint letter by April 12th from the parties about what they want to do next.

Unless a court were to rule that the First Sale Doctrine (which is what enables you to resell a paperbook without first getting the publisher’s permission, basically) applies to contracts (which is what you agree to when you buy an e-book in the Kindle store…you are really buying a license), I haven’t quite seen ReDigi’s argument.

The process that they use,while it ensures that only one copy of the e-book does exist at a time between the purchasers, still makes a copy and distributes it without the rightsholder’s authorization. While the effect is similar to selling a copy of a p-book, the process is quite different…and you didn’t buy a copy of the file, you bought a license.

However, I’m not a lawyer, and I’m always hesitant to predict what a court will do, based on mere logic. 😉

The key thing for me is that the potential for using Amazon’s patent, which I wrote about in early February, to create a used e-book market, is strengthened by this decision.

As I explained in that post, Amazon would do this with the rightsholders’ permission…and it would be an economic win for everybody, the way I laid it out.

There’s the split: without permission/with permission.

Not allowing it to be done without permission makes doing it with permission more economically viable, since there would be fewer competitors.

I think this moves a used e-book marketplace (through Amazon) much closer…you could be selling your used e-books sooner.

Publishers may wait to see what happens until we see what ReDigi does…if they don’t appeal (I expect that they will, if they have the resources), that helps clear the way for Amazon.

Yes, yes, I know…we don’t want Amazon monopolizing the used e-book market, any more than we would them monopolizing the used p-book market. However, the legal used e-book market doesn’t even exist right now, at least not unambiguously. Amazon’s patent could bring one into being, saving you money.

What do you think? Should the First Sale Doctrine apply to digital goods? Was ReDigi working in good faith to protect rightsholders’ interests, or was it working around existing protections for its own benefit? How important would a used e-book market be to you? Even with Amazon having a patent, could other legal resellers emerge? For example, could the publishers themselves do used e-books, if you bought directly from them (perhaps “buying you out” of the contract early)? Feel free to tell me and my readers what you think by commenting on this post.

This post by Bufo Calvin originally appeared in the I Love My Kindle blog.