Gesmer Updegrove LLP

Redigi – World’s First Used Digital Marketplace – Fails “First Sale” at Second Circuit

by Lee Gesmer on December 21, 2018

Redigi - World's First Used Digital Marketplace - Fails "First Sale" at Second Circuit

I first posted on Capitol Records v. Redigi in March 2012 (Redigi Case Poses A Novel Copyright Question on the Resale of Digital Audio Files – Is “Digital First Sale Legal? Link), and posted a number of follow-up articles on this interesting case. Absent an appeal to the Supreme Court this long-running copyright case has finally come to an end with the Second Circuit’s December 12, 2018 decision holding that Redigi infringed the exclusive copyright right of reproduction with respect to the “second-hand” digital music files it sold via the Redigi system.

To understand this case it’s important to appreciate how Redigi’s system works. I explained this in detail in the post linked above, and the Second Circuit opinion describes it quite thoroughly as well. In short, Redigi acts as a broker for music files purchased and downloaded from iTunes. Redigi uploads a seller’s  music file to its own server and offers it for sale, deleting it from the seller’s computer, although the seller can continue to stream the file until it is sold.… Read the full article

An Introduction to the Music Modernization Act

by Lee Gesmer on December 13, 2018

An Introduction to the Music Modernization Act

Every few decades Congress enacts a major amendment to the U.S. Copyright Act. We are at one of those inflection points now. On October 11, 2018 the Orrin G. Hatch–Bob Goodlatte Music Modernization Act (the “MMA”) was signed into law. (click here for full text of the law)

This is a massive, game-changing law for digital music distribution, and it may take years for it to be fully integrated with the complex U.S. music copyright system. But, if you’re at a holiday party this season and someone insists on discussing the MMA with you, this blog post will give you a few talking points.

From a 40,000 foot level the MMA does three things.

First, and most importantly, it completely revamps the U.S. mechanical licensing system for interactive digital streaming services and digital downloads by shifting the burden of identifying composers from the services to the composers themselves. This is a huge benefit to the digital music services, who in the pre-MMA era were responsible for locating composers entitled to royalties but often failed to do so, creating an enormous potential liability for copyright infringement.… Read the full article

Supreme Court To Decide Whether Trademark License Can Be Rejected In Bankruptcy

by Lee Gesmer on November 28, 2018

Supreme Court To Decide Whether Trademark License Can Be Rejected In Bankruptcy

The U.S. Supreme Court decides very few intellectual property cases. And, it accepts review of few cases from the First Circuit Court of Appeals in Boston (my circuit). So, when the Supreme Court accepts an IP case appealing a decision from the First Circuit, as it has now, I pay attention.

The case under appeal involves a narrow but important legal issue that is of interest to both the intellectual property licensing and bankruptcy communities. Here is a brief summary of what’s at issue.

The decision on appeal is Mission Product Holdings Inc. v. Tempnology LLC (1st Cir. January 12, 2018), and the issue is a mashup of trademark and bankruptcy law.

When a company files for protection under Chapter 11 of the Bankruptcy Code, the trustee or the debtor-in-possession (the “debtor”) may secure court approval to “reject” any executory contracts to which the debtor is a party. An example would be a distribution agreement for a specific term (say five years) that has not run its course.… Read the full article

It’s Probably Not a Good Idea to Sue Glassdoor If Your Employees Diss You There

by Lee Gesmer on October 26, 2018

It’s Probably Not a Good Idea to Sue Glassdoor If Your Employees Diss You There

Section 230 of the Communications Decency Act has, once again, protected a website from a claim of defamation based on user postings.

Simply put, Section 230 of the CDA provides that a website isn’t liable for defamation (or any other non-intellectual property claim) based on user postings. The poster may be liable (if she can be identified), but the website is not. Typically, Section 230 cases involve defamation or interference with contract by the poster — copyright infringement based on user postings is handled by a separate statute, the DMCA.

Craft Beer Stellar, LLC’s suit against Glasdoor ran into this law head-first in a recent case decided by Massachusetts U.S. District Court Judge Dennis Saylor.

Craft Beer complained to Glassdoor over a critical posting by a Craft Beer franchisee (the fact that the post was by a franchisee rather than an employee is legally irrelevant). Glassdoor removed the posting on the ground that it violated Glassdoor’s community guidelines.… Read the full article

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