Google Asks Court Not To Enjoin ReDigi

NewYorkCountryLawyer writes "Google has sought leave to submit an amicus curiae brief against Capitol Records' preliminary injunction motion in Capitol Records v. ReDigi. In their letter seeking pre-motion conference or permission to file (PDF) Google argued that '[t]he continued vitality of the cloud computing industry — which constituted an estimated 41 billion dollar global market in 2010 — depends in large part on a few key legal principles that the preliminary injunction motion implicates.' Among them, Google argued, is the fact that mp3 files either are not 'material objects' and therefore not subject to the distribution right articulated in 17 USC 106(3) for 'copies and phonorecords,' or they are material objects and therefore subject to the 'first sale' exception to the distribution right articulated in 17 USC 109, but they can't be — as Capitol Records contends — material objects under one and not the other."

Comments

But the statute doesn't say that :/

[Theaetetus]

From Google's letter:

The final principle concerns the interplay between two provisions of the Copyright Act which, by their plain language, are limited to material objects: the distribution right, Section 106(3), and the first sale doctrine, Section 109. Both provisions deal with copies and phonorecords, which are material objects in which copyrighted works are fixed.

But 17 USC 106(3) just says:

Subject to sections 107 through 122, the owner of copyright under this title has the exclusive rights to do and to authorize any of the following:
...(3) to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending;

Now, Google could say that "copies" implies a material object, but it's certainly not there in the plain language. In fact, 17 USC 106(6) goes on to discuss digital audio transmissions, and doesn't distinguish them as being non-material.

Google is correct that the Capitol Records brief is inconsistent:

The present motion argues that the first sale doctrine—which permits the owner of a lawfully-made copy or phonorecord to sell it without needing the copyright owner’s permission—cannot apply to this case because no material objects change hands. But it also argues that ReDigi infringes Capitol’s exclusive right to “distribute copies or phonorecords,” despite its admission that no material objects are distributed. Either both provisions apply, and ReDigi’s service may be protected by the first sale doctrine, or neither applies, and ReDigi’s service does not infringe the distribution right.

But they should be focusing on that inconsistency, rather than claiming the statute says something it doesn't. It almost seems like Google is trying to argue that First Sale doesn't apply, because "copies are not material objects".