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Robert J. Bernstein and Robert W. Clarida

On Dec. 12, the U.S. Court of Appeals for the Second Circuit issued a long-awaited ruling in Capitol Records v. ReDigi, No. 16-2321 (2d Cir. 2018) (slip op.) (ReDigi), affirming a grant of summary judgment in favor of Capitol Records in a case that raised issues of first impression concerning first sale and fair use in the age of digital music distribution. The defendant, ReDigi, developed technology that allowed buyers of authorized digital music files, such as downloaded songs from iTunes, to re-sell those files in a manner intended to mimic the resale of physical LPs or CDs. Both the District Court and the Second Circuit, however, found that defendant’s technology was not shielded by either the first sale doctrine under §109(a) of the Copyright Act, or the fair use doctrine under §107.

First Sale

Section 109(a) provides:

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