Used Ebooks

Posted Friday, August 8, 2014 - 10:45
Copyright symbol

So much hinges on copyright. The doctrine of First Sale meant that publishers couldn’t lock libraries out of the market. But digital works, like software, got swept under licensing agreements, with the power to place all kinds of restrictions on the sale resting almost entirely with the copyright holder. Typically, it’s worth pointing out, that is not the creator of the digital work; it’s the publisher. 

 

Licensing also has meant—in the United States, anyhow—that there are no such things as used ebooks. Consumers pay top dollar for anything that isn’t Creative Commons, public domain, or by an unknown author; in other words, when an item is new or resurgent (after it gets made into a movie, for instance), consumers rent access to it through various vendors (mainly Amazon, Kobo, Google, and Apple). 

 

That’s how it is in the United States, anyhow, where copyright is a corporate asset and is zealously protected and expanded.

 

But things seem to be different in the European Union, at least based on a recent ruling by the Amsterdam Court. A Netherlands-based online retailer of used digital media, Tom Kabinet, was sued by some EU publishers who made pretty much the same arguments as US corporations. But digital material never deteriorates! Cheap secondary markets will stifle innovation! However, the EU court saw things differently: It judged that such sales were not illegal. 

 

The result? There was such a surge of traffic to the Tom Kabinet site that it crashed at first. Publishers aren’t happy.

 

Another decision (PDF file) dating back to 2012 extended the principle beyond ebooks. The Court of Justice of the European Union stated that “An author of software cannot oppose the resale of his ‘used’ licenses allowing the use of his programs downloaded from the internet. The exclusive right of distribution of a copy of a computer program covered by such a license is exhausted on its first sale.”

 

The internet is a global network. The technical logistics of distributing a book or movie made in America directly to, for instance, Belgium, are trivial—one click. The problem is copyright. But now there are two starkly different approaches to it. Speaking on behalf of the reader, that’s good news. I would think it’s also good news for libraries. Speaking on behalf of authors, it’s not clear that they’re getting such a good deal from the EU rulings. And for the publishers? It looks like even more uncertainty.

 

JAMES LARUE

Comments

Jamie,

I'm about 6 weeks late with this comment, but I'm glad to see someone talking about this outside of the normal tech blogs who frame this issue as one of patent holders and disruption, and not of trademark and distribution.

I think we agree on most issues you cover on this e-content blog, but I'm not sure about this one. 

It seems to me - and this is purely my own opinion - that the First Sale doctrine made perfect sense in reference to physical sales. I believe it actually uses the words "material objects" in numerous locations. If I'm an author/publisher and you buy a physical book, you should, and do, have the right to sell that used object.

Again, for me, this is the intended purpose of First Sale - to exhaust the copyright owner's (publisher/author) interest in the material object, WHILE protecting the copyright owner's right to reproduction. 

That last part is very important. With digital, there's nothing stopping someone from buying a single copy of an ebook, making infinite copies, and then selling all of those files as used. Technically speaking, you still purchased the "object" in this example (if so stated in the EULA), so you have the right to sell that EXACT object however you see fit. The difference being that making and selling an exact copy of a physical product infringed upon the copyright owner's right to distribute and reproduce, where as it's much harder to say exactly what is happening with an exact copy of a digital file. 

The US Copyright Office stated: "The tangible nature of a copy is a defining element of the first-sale doctrine and critical to its rationale."

I think the most important word there is "tangible". I also strongly feel that this is another example of using an antiquated doctrine/law/way-of-doing-things that is clearly not meant to apply to digital. We talk openly about how it makes absolutely no sense that libraries have to re-buy / re-license an ebook file after a certain number of uses. It's ridiculous and simply a holdover way of doing business from physical print books. Tom Kabinet (and the others that will surely follow) are similarly taking advantage of ideas that don't translate to digital. 

First Sale did make sense for paper. I guess my question is what's up with licensing. Does it prevent illegal copying? No. In effect, it has meant the denial of sales to libraries, or the implementation of exclusive and punitive distribution schemes. Is the author benefiting from them? I think we agree that the author SHOULD make money on digital sales, and I would even argue a larger percentage than from paper. You're right that we need new and better models. For instance...?