Brief of Copyright Law Scholars as Amici Curiae in Support of Defendants-Appellants and Reversal in Capitol Records et al. v. ReDigi et al., 16-2321 (2nd Cir. 2017)

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Schultz, Jason
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The entitlement to sell or dispose of one’s ownership interest in a lawful copy of a copyrighted work has long been recognized by both Congress and the courts. This “first sale” entitlement, established by a line of cases stretching back to the nineteenth century and expressly reaffirmed by Congress, embraces not only property dispositions such as resale or donation, but also limited acts of alteration and reproduction necessary to facilitate disposition. While advances in digital technology have complicated the first sale doctrine’s application, they cannot eradicate it as the District Court suggested. In fact, Congress understood the need for a copyright law that adapts to changes in technology and nothing in 17 U.S.C. § 109(a) indicates otherwise. If allowed to stand, the opinion below will undermine copyright law’s careful balance between the rights of copyright holders and consumers, leading to unanticipated and absurd results contrary to settled law and reasonable consumer expectations. For example, the District Court’s rule would require an owner of a digital song to sell her $800 smartphone to alienate a single $1 song. It would be as if selling a book at a garage sale required you to sell your bookshelf and all its contents along with it. After all, the smartphone contains not only that $1 song, but likely thousands more, along with personal photos, communications, and financial records. This outcome contradicts the plain language of § 109(a) and the longstanding history of copyright exhaustion that underlies it. Moreover, it is inconsistent with the legislative history of the Copyright Act, the property rights of digital consumers, and aspects of the District Court’s own holding. Finally, the District Court ignored the fact that the purpose of any incidental copies created by the ReDigi system was to facilitate the first sale rights consumers are entitled to effectuate under § 109(a). As a result, the District Court’s fair use analysis is fatally flawed. * NYU Technology Law & Policy Clinic Teaching Fellow Amanda Levendowski and students Cassandra Deskus, Kristen Iglesias, and Ari Lipsitz contributed heavily to this brief.