{"pk":60223,"title":"Unresolved Textual Tension: \nCapitol Records v. ReDigi\n and a Digital First Sale Doctrine","subtitle":null,"abstract":"In \nCapitol Records v. ReDigi\n, the District Court for the Southern\n \nDistrict of New York ruled that the first sale doctrine does not apply\n \nwhen consumers resell copyrighted goods by digital distribution, even\n \nif they use \"forward-and-delete\" software that ensures that the seller's\n \ncopy is deleted during the transaction. This ruling hinged on the\n \ncourt's interpretation of the word \"particular\" in § 109 of the Copyright\n \nAct. The court reasoned that when copyrighted music is downloaded,\n \nthe specific location on the disk to which it is downloaded is a\n \n\"phonorecord.\" According to the court, a digital copy is made\n \nanywhere else constitutes a reproduction for the purposes of copyright\n \ninfringement. Because it is impossible for that physical piece of the\n \ndisk to be transferred via digital transmission, and every digital\n \ntransmission thus necessarily requires a reproduction, there can be no\n \nfirst sale protection for the distribution of digital goods.\n \n \nBecause of the metaphysical differences between physical and digital\n \nmedia, this comment argues that the fair use doctrine cannot be applied\n \nin a media-neutral fashion. Digital goods cannot be moved from place\n \nto place in the same way that physical goods can be moved, even\n \nthough the use of forward-and-delete technology (such as the kind\n \nReDigi utilizes) can cause the functional result to be the same: one\n \ncopy before the transmission, one copy after the transmission. The\n \ncourt's strict demand that the physical substrate where a copyrighted\n \nwork is fixed must remain identical in order to be considered the same\n \n\"particular\" copy (and thus eligible for first sale protection) is at odds\n \nwith earlier courts' rulings that repaired and restored works are eligible\n \nfor first sale protection. The court's demand is also at odds with its\n \nown conclusion that iPods and other mobile devices containing music\n \ncan be legally resold. These inconsistencies demonstrate that the\n \nphrase \"particular copy or phonorecord\" in 17 U.S.C. § 109 (which\n \ncodifies the first sale doctrine) makes the statute unable to account for\n \ndigital media and thus unable to apply in a media-neutral fashion. A\n \nspecific carve-out for digital media is necessary for the law to keep up\n \nwith the development of technology. Such a change is preferable because\n \nmedia-neutral application of the first sale doctrine permits a secondary\n \nmarket for digital goods to exist, which better serves both ends\n \nof copyright-the instrumental goal of rewarding authors and the ultimate\n \ngoal of providing the public access to creative works-by promoting\n \neconomic efficiency.","language":"en","license":{"name":"","short_name":"","text":null,"url":""},"keywords":[],"section":"Articles","is_remote":true,"remote_url":"https://escholarship.org/uc/item/11j4x2cg","frozenauthors":[{"first_name":"B.","middle_name":"Makoa","last_name":"Kawabata","name_suffix":"","institution":"","department":""}],"date_submitted":"2015-04-25T16:37:33Z","date_accepted":"2015-04-25T16:37:33Z","date_published":"2014-01-01T00:00:00Z","render_galley":null,"galleys":[{"label":"","type":"pdf","path":"https://journalpub.escholarship.org/uclalaw_elr/article/60223/galley/46182/download/"}]}