In Capitol Records v. ReDigi, the District Court for the Southern

District of New York ruled that the first sale doctrine does not apply

when consumers resell copyrighted goods by digital distribution, even

if they use "forward-and-delete" software that ensures that the seller's

copy is deleted during the transaction. This ruling hinged on the

court's interpretation of the word "particular" in § 109 of the Copyright

Act. The court reasoned that when copyrighted music is downloaded,

the specific location on the disk to which it is downloaded is a

"phonorecord." According to the court, a digital copy is made

anywhere else constitutes a reproduction for the purposes of copyright

infringement. Because it is impossible for that physical piece of the

disk to be transferred via digital transmission, and every digital

transmission thus necessarily requires a reproduction, there can be no

first sale protection for the distribution of digital goods.

Because of the metaphysical differences between physical and digital

media, this comment argues that the fair use doctrine cannot be applied

in a media-neutral fashion. Digital goods cannot be moved from place

to place in the same way that physical goods can be moved, even

though the use of forward-and-delete technology (such as the kind

ReDigi utilizes) can cause the functional result to be the same: one

copy before the transmission, one copy after the transmission. The

court's strict demand that the physical substrate where a copyrighted

work is fixed must remain identical in order to be considered the same

"particular" copy (and thus eligible for first sale protection) is at odds

with earlier courts' rulings that repaired and restored works are eligible

for first sale protection. The court's demand is also at odds with its

own conclusion that iPods and other mobile devices containing music

can be legally resold. These inconsistencies demonstrate that the

phrase "particular copy or phonorecord" in 17 U.S.C. § 109 (which

codifies the first sale doctrine) makes the statute unable to account for

digital media and thus unable to apply in a media-neutral fashion. A

specific carve-out for digital media is necessary for the law to keep up

with the development of technology. Such a change is preferable because

media-neutral application of the first sale doctrine permits a secondary

market for digital goods to exist, which better serves both ends

of copyright-the instrumental goal of rewarding authors and the ultimate

goal of providing the public access to creative works-by promoting

economic efficiency.