...courts have not previously addressed whether the unauthorized transfer of a digital music file over the Internet – where only one file exists before and after the transfer – constitutes reproduction within the meaning of the Copyright Act. The Court holds that it does.

The Copyright Act provides that a copyright owner has the exclusive right “to reproduce the copyrighted work in . . . phonorecords.” Copyrighted works are defined to include, inter alia, “sound recordings,” which are “works that result from the fixation of a series of musical, spoken, or other sounds.” Such works are distinguished from their material embodiments. These include phonorecords, which are the “material objects in which sounds . . . are fixed by any method now known or later developed, and from which the sounds can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device.” Thus, the plain text of the Copyright Act makes clear that reproduction occurs when a copyrighted work is fixed in a new material object.

Simply put, it is the creation of a new material object and not an additional material object that defines the reproduction right. The dictionary defines “reproduction” to mean, inter alia, “to produce again” or “to cause to exist again or anew.” See Merriam-Webster Collegiate Edition 994 (10th ed. 1998) (emphasis added). Significantly, it is not defined as “to produce again while the original exists.” Thus, the right “to reproduce the copyrighted work in . . . phonorecords” is implicated whenever a sound recording is fixed in a new material object, regardless of whether the sound recording remains fixed in the original material object.

In addition, the first sale doctrine does not protect ReDigi’s distribution of Capitol’s copyrighted works. This is because, as an unlawful reproduction, a digital music file sold on ReDigi is not “lawfully made under this title.” ... Moreover, the statute protects only distribution by “the owner of a particular copy or phonorecord . . . of that copy or phonorecord.” Here, a ReDigi user owns the phonorecord that was created when she purchased and downloaded a song from iTunes to her hard disk. But to sell that song on ReDigi, she must produce a new phonorecord on the ReDigi server. Because it is therefore impossible for the user to sell her “particular” phonorecord on ReDigi, the first sale statute cannot provide a defense. Put another way, the first sale defense is limited to material items, like records, that the copyright owner put into the stream of commerce. Here, ReDigi is not distributing such material items; rather, it is distributing reproductions of the copyrighted code embedded in new material objects, namely, the ReDigi server in Arizona and its users’ hard drives. The first sale defense does not cover this any more than it covered the sale of cassette recordings of vinyl records in a bygone era.

Section 109(a) still protects a lawful owner’s sale of her “particular” phonorecord, be it a computer hard disk, iPod, or other memory device onto which the file was originally downloaded. While this limitation clearly presents obstacles to resale that are different from, and perhaps even more onerous than, those involved in the resale of CDs and cassettes, the limitation is hardly absurd – the first sale doctrine was enacted in a world where the ease and speed of data transfer could not have been imagined.

[M]ost lawful users of music and books have hundreds of dollars of lawfully obtained things on their computers and right now the value of that is zero dollars.

"I know the Beatles have changed but we're going to carry on like that," guitarist Angus Young told Sky News in May 2011, after the Beatles had ended their own iTunes holdout. "For us it's the best way. We are a band who started off with albums and that's how we've always been."

Back in October 2008, the band were even more hardline. "Maybe I'm just being old-fashioned, but this iTunes, God bless 'em, it's going to kill music if they're not careful," singer Brian Johnson told Reuters.

"It's a...monster, this thing. It just worries me. And I'm sure they're just doing it all in the interest of making as much...cash as possible. Let's put it this way, it's certainly not for the... love, let's get that out of the way, right away."

This list is just a fraction of the songs EMI makes available, but it's irrefutable that EMI uses free song files as promotion. Astonishingly they are still telling the court that they don't authorize song files to be distributed for free. They are denying these songs are legitimate in spite of overwhelming evidence of MP3 files from retailers, blogs, artist sites, label sites, and marketing sites. Even when you point to one of their own corporate blogs which offers downloads they remain steadfast in their claim that they don't distribute MP3s online for free.

Thanks to the MP3tunes user community, we have powerful evidence to refute EMI's claims that they don't distribute promotional songs. I think it's one of the first examples of crowdsourcing evidence. The evidence was assembled not by parties to the litigation or their legal teams but citizens with a computer and motivation to help out. We'll learn later this year whether it will help MP3tunes prevail.

"When it comes to traffic in material that violates the Copyright Act, the policy of the United States is embedded in the FBI warning we see at the start of every lawfully purchased or rented video: Infringers are to be stopped and prosecuted."