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Judge denies EMI's bid to halt resale of digital music

Judge turns down EMI's request for a preliminary injunction against music reseller ReDigi, and says he's inclined to let the case go to trial because of the "fascinating" technological and legal questions it involves.

ReDigi, a music marketplace for used digital tracks, will have its day in court.

EMI's Capitol Records building in Hollywood. Capitol Records is the EMI label represented in EMI's copyright suit against ReDigi. Greg Sandoval/CNET

EMI, one of the top four record companies, alleged last month in a copyright complaint that ReDigi makes unauthorized copies of its songs to operate its music reselling business. EMI asked the court for a preliminary injunction, which would have forced ReDigi to shut down while the issue was decided in court, but the judge refused, according to a press release issued by ReDigi yesterday.

U.S. District Judge Richard Sullivan said he is inclined to let the case go to trial because of the many "fascinating" technological and legal questions it involves.

"We are grateful for the judge's decision in our favor," said John Ossenmacher, ReDigi's CEO, said in a statement. The company added that "ReDigi is breaking down the barriers that have kept consumers from enjoying their intrinsic and lawful ownership rights to their digital purchases."

ReDigi scans a user's computer hard drive to obtain the copy of the song the person wants to sell and then deletes it from the seller's hard drive. The startup, which launched a test version of the service last fall, asserts that the sale of digital music is protected under the same "First Sale" doctrine that protects the sale of CDs, vinyl records, DVDs, and other physical goods.

Ossenmacher has said the company discourages the illegal copying of music with a verification system, but he has also conceded that there's no way for ReDigi to guarantee that users who resell music through his service haven't made copies of their songs and stored them on some other hard drive.

EMI said that for ReDigi to operate its business, it must make copies of the music it finds on hard drives and this makes them unauthorized copies, a violation of copyright law. For this reason, there can be no claim of "First Sale" rights because the songs being sold are not legally obtained.

"We are pleased that the Court accepted our legal arguments on the merits of the dispute, even if an injunction was not issued at this time," EMI said in a statement. "We fully expect that ReDigi will ultimately have to answer for its clear acts of infringement."

So, now we must wait out a civil trial to find out if it's legal to sell digital tracks the way we used to sell CDs and vinyl albums. If it does, then that may mean we can do the same with our digital movies. Let's hope the judge is right and this case does fascinate.