In a letter filed with the Supreme Court this week, the defendants in Capitol Records v. ReDigi, a key copyright case watched closely by the publishing industry, indicated that they will be seeking a high court review.
Specifically, the defendants' letter, addressed to Justice Ruth Bader Ginsburg, asked for a 60-day extension to file its petition for Certiorari, citing a scheduling conflict. “The Petition raises novel and important legal questions about copyright law,” the letter to Ginsburg states, including whether “a person who lawfully acquires a digital file through the Internet has the right to resell it.”
The request comes after a three-judge panel of the Second Circuit Court of Appeals last December unanimously upheld a 2013 ruling that effectively shut down ReDigi, an upstart service created in 2011 to offer consumers a way to resell their legally purchased iTunes files. In a narrow 26-page ruling, the appeals court agreed with district court judge Richard Sullivan that ReDigi's service was illegal because it necessarily involved the creation of unauthorized reproductions, even though both courts acknowledged that the service effectively mimicked the kind of analog resale protected by section 109 of the Copyright Act (known as the doctrine of First Sale).
Notably, while streaming models have to some degree mooted the potential of a resale market for iTunes files, the ReDigi case has been seen by some as an opportunity to explicitly extend the first sale doctrine to the digital realm, and has been closely watched by the publishing industry, as ReDigi and other players (including Amazon) have expressed interest in creating a resale market for e-books.
In an amicus brief filed in 2017, the Association of American Publishers urged the court to uphold Sullivan’s decision, contending that legalizing services like ReDigi would be "catastrophic for the entire publishing industry," as a secondary market made up of cheaper, yet indistinguishable "used" e-books would threaten the industry's primary market.
While the case has garnered significant media attention, lawyers told PW this week that it was unlikely the high court will end up taking the case, noting the lack of a circuit court split.