View Full Version : Geo-restrictions not legal?


alvico
03-19-2010, 02:41 AM
Industry source says ebook geo-restrictions not legal – suggests we all rort at will

http://bookbee.com.au/index.php/2010/03/19/book-industry-source-says-ebook-geo-restrictions-not-legal-rort-at-will/

Now why doesn't this surprise me?

colinsky
03-19-2010, 03:13 AM
...I had to look it up (obviously not an Aussie here!).

rort, n. 1. An act of fraud or sharp practice; a ‘lurk’.
http://203.166.81.53/and/index.php

Sweetpea
03-19-2010, 03:17 AM
...I had to look it up (obviously not an Aussie here!).


http://203.166.81.53/and/index.php

Thanks, saves me the trouble :p



Nice piece of work there! It's also how I think of it: if it's not available for me in my geograhic region, why wouldn't I be able to buy it from another geographic region? Which is why I simply ignore those regions in any way I can...

alvico
03-19-2010, 03:43 AM
Oops... I didn't realise "rort" wasn't a universal word. I just know I saw a lot of it when I was studing commercial law.

Sorry. :o

lene1949
03-19-2010, 04:37 AM
Industry source says ebook geo-restrictions not legal – suggests we all rort at will

http://bookbee.com.au/index.php/2010/03/19/book-industry-source-says-ebook-geo-restrictions-not-legal-rort-at-will/

Now why doesn't this surprise me?

English is my second language, and I have no idea what 'rort' means...

Ben Thornton
03-19-2010, 04:53 AM
It seems to me that while his source was probably correct that Amazon's decision to impose restrictions was a business decision, not a legal requirement on them, it doesn't follow that I have a right to bypass that decision by fraud.

They ask what law one is breaking - it's payment of local taxes that would concern me. If I tell Amazon.com that I'm in the US, I don't pay VAT, and I suspect that it isn't legal to lie to a retailer so as to avoid VAT payment.

I hate geo restrictions, and wish that I could circumvent them with impunity, but I don't think I can.

AlexBell
03-19-2010, 05:00 AM
Industry source says ebook geo-restrictions not legal – suggests we all rort at will

http://bookbee.com.au/index.php/2010/03/19/book-industry-source-says-ebook-geo-restrictions-not-legal-rort-at-will/

Now why doesn't this surprise me?

Thanks for the link to the site; I've bookmarked it and will explore it later.

Regards, Alex

Stormchild
03-19-2010, 06:55 AM
English is my second language, and I have no idea what 'rort' means...
Don't worry, English is my first and I have no idea either. :rolleyes:

sony_fox
03-19-2010, 08:25 AM
How's this apply outside of Aus? anyone know?

sabredog
03-19-2010, 08:37 AM
Well, well, well...

A very interesting article, thanks for the link!

Lemurion
03-19-2010, 09:24 AM
Disclaimer: I am not a lawyer, and this is not intended as legal advice.

As I understand it, that situation is peculiar to Australia and doesn't apply to most geographic restrictions anyway.

Amazon.com or any other ebook site is legally allowed to sell to almost anyone anywhere in the world (Cuba and North Korea being notable exceptions). The general problem is contractual.

Amazon's sales contract basically states that they can only sell an ebook to people in territories where the publisher has the rights to distribute that book. They can still sell to those people in general, but they have signed a contract saying they won't sell these products to them. That's why you can still order a pbook from Amazon to Australia even when you can't buy the Kindle edition of the same book from the same publisher. The contracts allow one but not the other.

It's the contracts that are the killer here.

Ben Thornton
03-19-2010, 09:32 AM
Is there not also a tax issue for Australia if you set up a false US address? Doesn't GST apply to ebooks?

sabredog
03-19-2010, 09:59 AM
No, GST only is applied for items purchased domestically. I buy a lot of items online for my hobby as they are not available here readily in Australia. I have never been asked by the ATO to pay GST on them or been asked to pay customs for that matter either,

Ben Thornton
03-19-2010, 10:10 AM
Fair enough - but from the UK, this is definitely an issue for VAT, because Amazon.com apply VAT to the ebooks that I buy. If you're in the US, obviously, this doesn't apply, but claiming to be there when your not is some form of tax evasion I suspect.

DawnFalcon
03-19-2010, 10:53 AM
It seems to me that while his source was probably correct that Amazon's decision to impose restrictions was a business decision, not a legal requirement on them, it doesn't follow that I have a right to bypass that decision by fraud.

Don't confuse the situation in the UK or USA with the one in Australia. Remember that things like modchips are legal under their law - and you cannot legally enforce regional restrictions on DVD's or games in Australia!

So it doesn't surprise me that it's quite likely entirely legal to bypass georestriction blocks, if you're Australian.

The tax issue is a separate question, but given Australian law, I doubt it's an issue. In the UK, yes, it is an issue but. The but is that VAT is only payable on "consignments over £18*". Customs duty doesn't kick in until £135.

(*there are a couple of exceptions, but not book-related)

HarryT
03-19-2010, 11:14 AM
.

The tax issue is a separate question, but given Australian law, I doubt it's an issue. In the UK, yes, it is an issue but. The but is that VAT is only payable on "consignments over £18*". Customs duty doesn't kick in until £135.


An eBook is not a "consignment"; VAT is payable on a purchase of an eBook of any price. If you buy an eBook from Mobipocket, Waterstones, BooksOnBoard, or any other site which charges VAT to EU residents, you'll pay the VAT no matter how low the value of your purchase.

bevdeforges
03-19-2010, 12:29 PM
The VAT shouldn't be that much of an issue for e-books. If you buy software online for download, there is (or used to be - haven't done so lately) a system in place where you pay VAT for downloaded software based on the billing address for the credit card you use for payment.

I used to run into this all the time because I live in France, but prefer to have my software (and my computer) speak to me in English. Back in the old days, there was one shop in Paris that stocked popular software in English version - but they used to claim that you had to show a foreign passport to buy software in any language other than French.

There's no reason they couldn't set up a similar system for e-books - once they change the distribution agreements to allow publishers to distribute books based on language or some other criteria other than physical location.

phenomshel
03-19-2010, 02:14 PM
That's ok, I misread it as "riot at will" !!

DawnFalcon
03-19-2010, 02:29 PM
An eBook is not a "consignment"; VAT is payable on a purchase of an eBook of any price. If you buy an eBook from Mobipocket, Waterstones, BooksOnBoard, or any other site which charges VAT to EU residents, you'll pay the VAT no matter how low the value of your purchase.

Okay, firstly something is either a consignment or a gift. You are not liable for reporting and paying VAT on items under £18. See here (http://customs.hmrc.gov.uk/channelsPortalWebApp/channelsPortalWebApp.portal?_nfpb=true&_pageLabel=pageImport_ShowContent&propertyType=document&id=HMCE_CL_000014#P31_2917). This does not mean that companies within the EU (and others, by treaty*) do not have to charge you VAT, but that VAT has to be included within the price of the purchase in those cases.

However - If you purchase ebooks from, say, an American website - where no VAT is paid - then you are under no obligation to report the purchase and pay VAT unless the payment is over £18!

(*"Channel Islands, Hong Kong, Singapore and New Zealand")

alvico
03-19-2010, 07:33 PM
Disclaimer: I am not a lawyer, and this is not intended as legal advice.

As I understand it, that situation is peculiar to Australia and doesn't apply to most geographic restrictions anyway.

Amazon.com or any other ebook site is legally allowed to sell to almost anyone anywhere in the world (Cuba and North Korea being notable exceptions). The general problem is contractual.

Amazon's sales contract basically states that they can only sell an ebook to people in territories where the publisher has the rights to distribute that book. They can still sell to those people in general, but they have signed a contract saying they won't sell these products to them. That's why you can still order a pbook from Amazon to Australia even when you can't buy the Kindle edition of the same book from the same publisher. The contracts allow one but not the other.

It's the contracts that are the killer here.

I agree that's part of the problem is contractual, but by no means all of it. B&N restrict sale of my book to US residents. This is their decision and has absolutely nothing to do with any contractual obligations. The book is available elsewhere else DRM-free and without restriction of any kind.

sabredog
03-19-2010, 07:41 PM
I agree that's part of the problem is contractual, but by no means all of it. B&N restrict sale of my book to US residents. This is their decision and has absolutely nothing to do with any contractual obligations. The book is available elsewhere else DRM-free and without restriction of any kind.

Thanks for that info.

Graham Sharp Paul is an Aussie SF author based in Melbourne (IIRC) whose publisher is Random House. I had to go through hoops to buy his book due to GR.

So even if the author is an Aussie, does not mean the ebook is available for Aussies to buy easily

Elfwreck
03-19-2010, 07:57 PM
They ask what law one is breaking - it's payment of local taxes that would concern me. If I tell Amazon.com that I'm in the US, I don't pay VAT, and I suspect that it isn't legal to lie to a retailer so as to avoid VAT payment.

In the US (don't know how this applies to the UK), sales tax is paid by the retailer--and they're allowed, not required, to demand customers pay them for it. Businesses regularly run "we pay the tax!" sales, which work out to a 5-10% discount depending on what state they're in. (There are states with lower sales taxes, and a couple with none, but they don't run "we pay the tax" as promotional sales methods.)

Is the customer *required* to pay VAT, or is the retailer required to pay it, and permitted to pass the cost along to the customer? (Also, is the customer required to pay it, or import fees, for purchases made out of the country & brought home later?)

pilotbob
03-19-2010, 08:08 PM
In the US (don't know how this applies to the UK), sales tax is paid by the retailer--and they're allowed, not required, to demand customers pay them for it.

I'm not really sure why you think this. It is not technically correct. Sales tax is "collected" by the retailer and they remit it to the state. It is technically a consumption tax levied by the state on the end consumer of the goods. There is no tax burden on the retailer... however there is a burden on them to remit collected tax.

Of course, they can choose not to "collect" the tax... but they still have to pay a percentage of taxable sales.

BOb

DawnFalcon
03-19-2010, 10:47 PM
Is the customer *required* to pay VAT, or is the retailer required to pay it, and permitted to pass the cost along to the customer? (Also, is the customer required to pay it, or import fees, for purchases made out of the country & brought home later?)

VAT is basically always charged, but businesses can later claim it back. If you're selling to the public, you have to price your product including VAT. If you're only selling to businesses (at least in theory), you can advertise the price without VAT (as long as you note that).

Basically, you see one price as a consumer which includes VAT. What you see is what you pay.

If you buy something from within the EU, same rules apply - VAT's been paid. If you import anything from outside (except for a few cases where treaties apply VAT), then if the item value is over a given margin VAT (over £18 in the UK) and import duty (over £130 in the UK, and if the duty is £9 or more), then you get to pay.

(Plus some extras for alcohol, tobacco and so on)

Of course, it's amazing how many people don't pay when they purchase and download something which costs over £18 from, say, America. Which is technically tax fraud.

Kali Yuga
03-20-2010, 12:45 AM
I don't know all the ins and outs, but my initial guesses are:

• As already mentioned, there are all kinds of contractual obligations and taxation issues.
• I'm not sure that purchasing and downloading an electronic item qualifies as a "parallel import."
• Not many big retailers are willing to sell grey market goods anyway.
• Even if it is 100% legal, it would tick off pretty much every local publisher, as they'd see their American counterparts collect revenues that normally would go to the local. E.g. if the US has wider availability and cheaper prices (due to a lack of VAT for example), Aussie and British publishers would climb the walls due to lost revenue.


B&N restrict sale of my book to US residents. This is their decision and has absolutely nothing to do with any contractual obligations. The book is available elsewhere else DRM-free and without restriction of any kind.
Sure, but in addition to all of the above, their ebook service also isn't set up for any international sales afaik. They can't set up an entire international business just for a handful of titles.

I assume that once B&N starts doing ebook business abroad, they'll make all the Smashwords stuff available internationally.

GeoffC
03-20-2010, 03:23 AM
not ALL books are geographically restricted, according to FW it's only affects fewer than ten percent of their titles. In most cases the restrictions are for European countries or Australia, but in some cases the restrictions can be quite complicated and affect many different regions. The eBook's description page will list any restrictions.

the fact that it only affects some books/authors makes the tax argument a little superfluous. In the series by Tad Williams "Memory, Sorrow, and Thorn"; books 1&2 are available for me to purchase as a UK resident, but books 3&4 are restricted geographically. [2 of the books are only available in ePub...]

bevdeforges
03-20-2010, 03:51 AM
In the US (don't know how this applies to the UK), sales tax is paid by the retailer--and they're allowed, not required, to demand customers pay them for it. Businesses regularly run "we pay the tax!" sales, which work out to a 5-10% discount depending on what state they're in. (There are states with lower sales taxes, and a couple with none, but they don't run "we pay the tax" as promotional sales methods.)

Is the customer *required* to pay VAT, or is the retailer required to pay it, and permitted to pass the cost along to the customer? (Also, is the customer required to pay it, or import fees, for purchases made out of the country & brought home later?)

Actually, in the US, most states (including California) have a "sales and use" tax. Technically, you're supposed to declare all out of state purchases on which you have not paid any sales tax and pay your state government - usually along with your state income taxes. Individuals rarely do this, but with the current financial crisis, don't be surprised if states suddenly "remember" this little feature of their tax laws.

In Europe, goods coming in from outside the EU have to pay their VAT, which usually means that the recipient gets the bill. (There is no exemption for a "gift" - we've wound up paying VAT on gifts our American friends carefully marked as such.) In France, each incoming shipment for FedEx or UPS or any of the other big shippers is tallied up and an invoice for the VAT is sent out to the recipient. Usually arrives 3 to 5 days after the package does.

Basically, that's the operating principle for how they assess the appropriate VAT on software you purchase online for download. If your credit card billing address is in France, you get hit for French VAT. There's an allowance for stuff you bring back with you from trips overseas, but it's not much. Just that they rarely check your bags unless it's patently obvious you went on a buying spree in Hong Kong or someplace known for the good shopping.
Cheers,
Bev

alvico
03-20-2010, 03:57 AM
not ALL books are geographically restricted, according to FW it's only affects fewer than ten percent of their titles. In most cases the restrictions are for European countries or Australia, but in some cases the restrictions can be quite complicated and affect many different regions. The eBook's description page will list any restrictions.

the fact that it only affects some books/authors makes the tax argument a little superfluous. In the series by Tad Williams "Memory, Sorrow, and Thorn"; books 1&2 are available for me to purchase as a UK resident, but books 3&4 are restricted geographically. [2 of the books are only available in ePub...]

Exactly!

lene1949
03-20-2010, 04:37 AM
not ALL books are geographically restricted, according to FW it's only affects fewer than ten percent of their titles. In most cases the restrictions are for European countries or Australia, but in some cases the restrictions can be quite complicated and affect many different regions. The eBook's description page will list any restrictions.


Fictionwise's 10% probably apply to Americans.. In Australia the figure is more than likely 90%

Ben Thornton
03-20-2010, 04:40 AM
the fact that it only affects some books/authors makes the tax argument a little superfluous. In the series by Tad Williams "Memory, Sorrow, and Thorn"; books 1&2 are available for me to purchase as a UK resident, but books 3&4 are restricted geographically. [2 of the books are only available in ePub...]The point about tax is not that geo restrictions are justified by some quirk of taxation, but rather that once such restrictions have been applied, circumventing them might avoid paying tax which you should pay according to local laws. So the case you cite is annoying, and seems unjustified, but if you pretend to be in the US to circumvent the geo restriction, the side-effect that VAT is not paid could be a problem.

Gwen Morse
03-20-2010, 04:41 AM
No, GST only is applied for items purchased domestically. I buy a lot of items online for my hobby as they are not available here readily in Australia. I have never been asked by the ATO to pay GST on them or been asked to pay customs for that matter either,

You can be asked to pay customs fees for items shipped to Australia. I visited several years ago and arranged to have an expensive present shipped from the US to the host family concurrent with my visit.

My host went to the post office to pick up the package. Imagine my horror and embarrassment when I discovered he had to pay $100 AU in "customs tariff" fees to collect it. I did insist on paying him back, but, I always felt it tainted what was meant to be a thoughtful gesture.

It's good for you that you've never been charged but it could happen to someone in the future.

HansTWN
03-20-2010, 04:41 AM
Just that they rarely check your bags unless it's patently obvious you went on a buying spree in Hong Kong or someplace known for the good shopping.
Cheers,
Bev

You obviously haven't been to HK in a long time. Nowadays, when you return to your country, customs will probably say "poor guy, you have overpaid so much, we will give you a break on those taxes". :smack:

GeoffC
03-20-2010, 05:07 AM
Fictionwise's 10% probably apply to Americans.. In Australia the figure is more than likely 90%

For FW they maintain that there is little restriction for US...a little more for CA, with the bulk of the 10% being the rest of the world. (don't know about Australia).

The point about tax is not that geo restrictions are justified by some quirk of taxation, but rather that once such restrictions have been applied, circumventing them might avoid paying tax which you should pay according to local laws. So the case you cite is annoying, and seems unjustified, but if you pretend to be in the US to circumvent the geo restriction, the side-effect that VAT is not paid could be a problem.

I can buy non-geo books from FW, and there are more than I originally thought - a lot depends on the author/publisher - at least one net effect of this is that I have now discovered 'new' authors to read.

I buy using my UK address & credit card, the price stays the same; all I am charged extra for is a minimal currency transaction. so whether the book is or is not geo-restricted, the tax issue is seemingly not addressed (though there is probably a US sales tax in the price, so I am probably helping to shore up the US tax system rather than the UK's.....:chinscratch:)

tompe
03-20-2010, 07:02 AM
I buy using my UK address & credit card, the price stays the same; all I am charged extra for is a minimal currency transaction. so whether the book is or is not geo-restricted, the tax issue is seemingly not addressed (though there is probably a US sales tax in the price, so I am probably helping to shore up the US tax system rather than the UK's.....:chinscratch:)

If the point of sale is in the UK it should be the UK VAT that the seller should charge you.

GeoffC
03-20-2010, 07:24 AM
If the point of sale is in the UK it should be the UK VAT that the seller should charge you.

perhaps, but the price given on US sites don't appear to recognise my location....
the price before placing in basket is the same as when paid for, even if I'm not logged in...

GeoffC
03-20-2010, 07:25 AM
doh ...

point of sale is in the US - there are few UK e-tailers that I use, the price being one main reason....geo-restriction still occurs in the UK!

Solicitous
03-20-2010, 08:27 AM
You can be asked to pay customs fees for items shipped to Australia. I visited several years ago and arranged to have an expensive present shipped from the US to the host family concurrent with my visit.

My host went to the post office to pick up the package. Imagine my horror and embarrassment when I discovered he had to pay $100 AU in "customs tariff" fees to collect it. I did insist on paying him back, but, I always felt it tainted what was meant to be a thoughtful gesture.

It's good for you that you've never been charged but it could happen to someone in the future.

It used to be anything imported with a value over $250 had a customs tax added to it. That figure has now been increased to $1000. Those figures are based upon the premise that the item being imported is for personal use. If an item, regardless of value, is being imported for resale, then the item gets customs tax added to it regardless.

tompe
03-20-2010, 10:13 AM
doh ...

point of sale is in the US - there are few UK e-tailers that I use, the price being one main reason....geo-restriction still occurs in the UK!

It has been repeatedly claimed here that the reason that you cannot by an E-book from the US in the same way as you can buy the paper book is that the point of sale for E-books is at the place the buyer are.

But maybe that is just a contractual definition and maybe have nothing to do with VAT.

DawnFalcon
03-20-2010, 11:32 AM
(There is no exemption for a "gift" - we've wound up paying VAT on gifts our American friends carefully marked as such.)

There is a higher threshold for paying VAT on gifts, though.


Ben - So keep purchases under £18. Then there's no problem.

GeoffC
03-20-2010, 01:37 PM
It has been repeatedly claimed here that the reason that you cannot by an E-book from the US in the same way as you can buy the paper book is that the point of sale for E-books is at the place the buyer are.

But maybe that is just a contractual definition and maybe have nothing to do with VAT.

But you CAN buy ebooks from a US store (legally) - I am still doing it! Don't forget it's only a "small" number that are (currently) geo-restricted....

tompe
03-20-2010, 03:02 PM
But you CAN buy ebooks from a US store (legally) - I am still doing it! Don't forget it's only a "small" number that are (currently) geo-restricted....

That you can buy it just say that they can sell it. It does not say that the store pay the correct VAT. It is like the situation in EU a couple of years ago when a lot of stores tried to avoid to pay the VAT in the country of the buyer which they had to to if they sold over a specific limit to the country. Now it seems that big sellers like amazon.co.uk handle that better and charge the buyers VAT.

Ben Thornton
03-20-2010, 03:54 PM
Ben - So keep purchases under £18. Then there's no problem.OK, let's say for the sake of argument that this is allowed, so that I'm not breaking VAT laws by, for example, buying from Amazon.com using a US address for goods under £18. What about the fact that I'd not be telling the truth? Isn't there a problem about obtaining goods under false pretenses?

I'm not talking about any moral issues, rather about whether there are legal problems.

pdurrant
03-20-2010, 04:22 PM
Okay, firstly something is either a consignment or a gift. You are not liable for reporting and paying VAT on items under £18. See here (http://customs.hmrc.gov.uk/channelsPortalWebApp/channelsPortalWebApp.portal?_nfpb=true&_pageLabel=pageImport_ShowContent&propertyType=document&id=HMCE_CL_000014#P31_2917). This does not mean that companies within the EU (and others, by treaty*) do not have to charge you VAT, but that VAT has to be included within the price of the purchase in those cases.

You are, in this case, incorrect.

The page you've linked to is for international post users. It does not apply to digital delivery. There is no small consignment waiver for digital delivery of goods.

See http://ec.europa.eu/taxation_customs/taxation/vat/how_vat_works/e-services/article_1610_en.htm#a10

Ben Thornton
03-20-2010, 04:32 PM
I suspect that you're right - the generic FAQ on this subject goes something like:

Q: Aren't there some cases where it's OK not to pay tax?
A: No.

The other relevant FAQ is:

Q: If the rules of your business are clearly insane, is it OK if I go around?
A: Sure, go ahead and lie to us and we'll happily do what you think is right.

Ea
03-20-2010, 04:53 PM
That you can buy it just say that they can sell it. It does not say that the store pay the correct VAT. It is like the situation in EU a couple of years ago when a lot of stores tried to avoid to pay the VAT in the country of the buyer which they had to to if they sold over a specific limit to the country. Now it seems that big sellers like amazon.co.uk handle that better and charge the buyers VAT.
The stores don't actually pay VAT - they just charge it and collect it. But yes, amazon and others do collect VAT now (which is why I try to look for smaller stores that doesn't collect it - what with the high Danish VAT rate, etc.). As far as I know, I ought to pay import tax and VAT for anything I buy outside EU, but with downloads and such of course you don't. Now I feel tempted to try find out what would happen if I did indeed try to pay tax for an ebook bought in USA :D Would probably involve a lot of fees....

DawnFalcon
03-20-2010, 09:35 PM
I'm not talking about any moral issues, rather about whether there are legal problems.

Yes (you're bypassing the site's ToS and hence your copy is unauthorised), but it does avoid the tax law issues.

pdurrant - UK law is not fully in compliance with the EU regulations.

GeoffC
03-21-2010, 02:36 AM
Just goes to show that tax matters and e-commerce have not quite caught up with each other (yet).
Whilst I comply with a retailers toc, which allows them to sell to me with a UK address and bank, I shall continue to do so with a clear conscience....

ChrisC333
03-21-2010, 04:48 AM
Industry source says ebook geo-restrictions not legal – suggests we all rort at will

http://bookbee.com.au/index.php/2010/03/19/book-industry-source-says-ebook-geo-restrictions-not-legal-rort-at-will/

Now why doesn't this surprise me?

Thanks for the link to an interesting article Alvico. :thumbsup:

It seems to confirm many of the things that I found out when I tried to discover what our local laws really are concerning computer games. In that case in turned out that any local laws that might possibly apply had not yet been tested in local courts, with particular regard to game software. So any and all interpretations were purely speculative. The Law Society told me as much, but did kindly suggest that I might like to pay for a test case! :rolleyes:

Some of the EULAs sounded almost reasonable, whilst others were obviously unsustainable bluff. The common denominator was that the terms that the licences tried to impose were widely ignored by both buyer and seller alike. But the bottom line was that the cops here weren’t remotely interested, and the only pressure from any quarter was commercial and internal. In other words most distributors didn’t care either way, but a handful did threaten to withdraw supply if a retailer didn’t toe their line.

The position here with books seems pretty similar, with a number of overlapping considerations, including:

THE LAW:

As the article points out, the legal position if often remarkable vague and difficult to pin down from state to state or country to country, as it hasn’t necessary been fully debated and framed let alone adequately tested in court yet. In the meantime, most people seem to operate on the basis of what they think ‘sounds legal’ or simply what they think they can get away with. If they think about it all, of course.

PERSONAL ETHICS:

Not everybody is keen to rip off whatever isn’t nailed down, locked up or protected in some way. But even those of us who are comfortable with paying taxes (after all, we use the services they pay for) and who prefer to pay our way, aren’t necessarily anal about making sure that every last cent in tax goes to the government. We’re also often perfectly happy to make our own judgements about what we’ll see as a reasonable demonstration sample and what is a blatant steal.

COMMERCIAL INTEREST:

In the real world this mostly where the ‘bottom line’ actually lives. In Australia the police are not interested in acting as unpaid referees and free nannies for everybody’s commercial arguments. Anybody who feels that their legitimate commercial rights have been infringed are free to attempt to take the alleged wrong-doer to court and thrash it out. In practice this is usually only done here where the trespass is seen as substantial, provable, and committed by somebody who can afford to pay both costs and damages.


Fortunately for me, I haven't yet been bothered too much either way by the current local e-book position. If I can’t find somebody who wants to sell me an e-book version then I’m usually happy to buy a printed version instead - or simply choose a different title. At this early stage of the game I’m not going to waste too much effort banging on about my alleged ‘rights’ because I think that they’re largely imaginary.

However, I think that some of the claimed ‘rights' of certain players in the piece are largely imaginary too. So if I could get a book from a US or UK site without too much fuss then I’d probably be happy to do so, unless I had a clear reason to believe that I was ripping somebody off.

Cheers,

Chris

Shaggy
03-22-2010, 05:05 PM
Amazon's sales contract basically states that they can only sell an ebook to people in territories where the publisher has the rights to distribute that book. They can still sell to those people in general, but they have signed a contract saying they won't sell these products to them. That's why you can still order a pbook from Amazon to Australia even when you can't buy the Kindle edition of the same book from the same publisher. The contracts allow one but not the other.

It's the contracts that are the killer here.

That would be Amazon's problem though. The individual customer is not bound by the contract in place between Amazon and the Publisher.

Lemurion
03-22-2010, 05:12 PM
That would be Amazon's problem though. The individual customer is not bound by the contract in place between Amazon and the Publisher.

While the customer may not be bound by that contract, Amazon may well be considered in breach of contract if they don't make a good faith attempt to prevent customers from outside the appropriate territories from making such purchases.

Disclaimer: IANAL and this is not legal advice.

Shaggy
03-22-2010, 05:12 PM
Yes (you're bypassing the site's ToS and hence your copy is unauthorised), but it does avoid the tax law issues.


The ToS is a contract between the customer and retailer, it has nothing to do with copyright authorization between the retailer and the rights holder.

You may or may not be in breach of contract (depending on whether or not those terms are legally enforceable), but that shouldn't have anything to do with copyright law.

Shaggy
03-22-2010, 05:14 PM
While the customer may not be bound by that contract, Amazon may well be considered in breach of contract if they don't make a good faith attempt to prevent customers from outside the appropriate territories from making such purchases.


Absolutely. I was just pointing out that it's Amazon's problem to worry about, not the customer's.

DawnFalcon
03-22-2010, 06:03 PM
You may or may not be in breach of contract (depending on whether or not those terms are legally enforceable), but that shouldn't have anything to do with copyright law.

If you have deliberately bypassed measures the publisher has taken to ensure that only authorised customers can get the book, what you are getting is an unauthorised copy.

Making copies is precisely what copyright is about, and the licence (not contract) in the ToS simply spells out the allowable conditions for getting books from the site.

PeteS
04-25-2010, 01:56 PM
As I am charged VAT by Amazon.com when I have bought an ebook - is that passed onto the UK Revenue Dept ?

Ea
04-25-2010, 03:07 PM
As I am charged VAT by Amazon.com when I have bought an ebook - is that passed onto the UK Revenue Dept ?
Where are your location?

As far as I know, VAT on Kindle books bought from EU is passed on to the relevant revenue department in each EU country. Not 100% sure, but at least I know I pay Danish VAT for the books I want to buy, which suggests to me that they are comptely aware of what they are doing. If you have specialised questions, I'd suggest you contact Amazon customer service.

Elfwreck
04-25-2010, 03:35 PM
If you have deliberately bypassed measures the publisher has taken to ensure that only authorised customers can get the book, what you are getting is an unauthorised copy.

Geo-restrictions aren't founded in copyright law; they're founded in sales contracts. They're contracted because of copyright law, but there are no "unauthorized customers," only distributors who aren't authorized to sell in some regions.

If an UK citizen walks into a US bookstore, he can buy a copy of Peter Pan published by an indie publisher because it's in the public domain here. The fact that the publisher can't distribute to the UK doesn't make him an unauthorized customer. He could also order it online, and have them ship it to him. If the store has a policy of not shipping overseas, he can have a friend buy it for him & ship it to the UK, he still hasn't broken any copyright laws by evading the stores "no overseas sales" policies. He bought a book from a US store under US laws.

If an ebook store is authorized to sell copies, the customers aren't breaking laws if they manage to buy a copy the store wasn't supposed to sell to them. (If a store sells 200 copies of the new Harry Potter book before the release date, the customers haven't broken copyright law.) It's the store's responsibility to make sure its customers fit within the criteria their contractual agreement with the publisher allows, not the customer's responsibility to know the details of those contracts and the laws that govern them.

If I can get to a certain site using Firefox but not Internet Explorer, because the store is required not to sell to "Microsoft customers," am I breaking the law if I still use Windows?

Stores that have contracted to only sell to a limited range of customers are responsible for figuring out who those are. And if their contracts say they won't sell to "Customers in the UK, as defined by IP address ranges [X] through [Y]," then customers using a different IP range are obviously not part of that group.

DawnFalcon
04-25-2010, 06:00 PM
Elfwreck - However, the sale location for an ebook is where you are. Hence, your own country's law applies. And UK law is quite plain that for an ebook to be authorised, you must have acquired it via a method which the copyright holder allows*. This includes complying with all sale restrictions, including geo restrictions.

(*Remembering Exhaustion of Rights, but that dosn't apply to new ebooks ofc)

The restrictions on the page are not "will not sell to IP range", they are "only available to people in countries X, Y and Z". If you are not, the store simply cannot sell you an authorised copy.

I don't make the law, don't complain to me it's unreasonable!


PeteS - Regardless if they do or not, as long as you pay it in good faith you are not liable for the tax.

HansTWN
04-25-2010, 08:57 PM
Elfwreck - However, the sale location for an ebook is where you are. Hence, your own country's law applies. And UK law is quite plain that for an ebook to be authorised, you must have acquired it via a method which the copyright holder allows*. This includes complying with all sale restrictions, including geo restrictions.

(*Remembering Exhaustion of Rights, but that dosn't apply to new ebooks ofc)

The restrictions on the page are not "will not sell to IP range", they are "only available to people in countries X, Y and Z". If you are not, the store simply cannot sell you an authorised copy.

I don't make the law, don't complain to me it's unreasonable!


PeteS - Regardless if they do or not, as long as you pay it in good faith you are not liable for the tax.

Well, those of us that circumvent those restrictions are on pretty safe ground here. We have PAID for the books. So the worst that could happen to us is that they would refund our money and ask us to return the books. And I don't believe for a second that the publishers or retailer would ever sue anyone who actually paid. Let's get real. Whatever the actual legal situation might be.

The only legal action that might take place is between the distributor in your country and the publisher and/or US seller. So the only thing that would scare me is if none of the old tricks worked anymore.

DawnFalcon
04-25-2010, 10:53 PM
No, sorry, you're not on safe grounds. Under UK law, and I have a written opinion on this, that you have paid is at best no defence against a charge of copyright infringement (and indeed, you have de-facto admitted it), and at worst fraud and potentially a tax and a few other lesser offences as well.

Be not so smug.

HansTWN
04-25-2010, 11:09 PM
I am not being smug, but they cannot afford the bad publicity of suing a paying customer. So I will take my chances here.

As far as tax issues are concerned, I myself have always argued that EU tax issues are another main reason why sales are being regionally restricted. However, since the amounts involved are so small, there is little risk involved for the individual. But to make "official" sales to European customers a US seller would have to have a VAT collection system in place. An they probably consider that to be far too much hassle to be worth it.

However, for you EU residents -- can't be too careful when tax issues are involved. Nothing your governments care more about than collecting every single cent they can get their hands on.

HansTWN
04-26-2010, 12:48 AM
And DawnFalcon, by your reasoning when you buy, on Amazon for example, with a gift certificate you never even misrepresent yourself in any way.

DawnFalcon
04-26-2010, 01:30 PM
Why are you assuming that "they" would have anything to do with it? The rights holders have every right to bring an action against you.

HansTWN
04-26-2010, 09:45 PM
Why are you assuming that "they" would have anything to do with it? The rights holders have every right to bring an action against you.

And they have 1000 reasons not to do so -- they are taking on paying customers! That would create a lot of wonderful publicity for them. By your reasoning even all books an American downloads while abroad would be illegal copies. And let us say they sue you, what are the damages they can claim? They have actually profited.

DawnFalcon
04-26-2010, 11:49 PM
The RIAA have 1000 reasons not to sue any of their customers, and that hasn't stopped them for a moment. The Agency Cartel are making precisely the same noises these days, too.

And if an American downloads something outside America, then usually he has to consider aspect of both American and local copyright law...it's VERY hard to get a legal copy in that situation, yes.

As to damages, "actually profited" really really doesn't matter. The item is infringing, and it's cost is used to calculate damages as-normal. The financial penalties for infringement are nothing to do with what anyone actually paid...

Conor
04-27-2010, 06:09 AM
Whatever the legal position, if anything is a victimless crime, this is.
If a paper book is available from Amazon UK, I will buy it from them. I only buy from the US, if there is no alternative.
If I had a choice, I would also buy UK ebooks. If there was an alternative to bypassing geo restrictions to buy an ebook I want to read, I'd use it.

HansTWN
04-27-2010, 07:55 AM
Whatever the legal position, if anything is a victimless crime, this is.
If a paper book is available from Amazon UK, I will buy it from them. I only buy from the US, if there is no alternative.
If I had a choice, I would also buy UK ebooks. If there was an alternative to bypassing geo restrictions to buy an ebook I want to read, I'd use it.

That is how I see it. I know that DawnFalcon wants to convince us that circumventing regional restrictions is worse than going to the darknet. That seems like saying buying a bottle of liquor with a fake ID while below the legal age limit is worse than walking into the store with a gun and just taking it.

According to the letter of the law there are some minor issues, but our actions follow the spirit of the law. We bought by paying full price to an authorized distributor. Sort of like a gray import. If you buy a car in another country and ship it back home you have not "stolen" it. Or my reader; Irex doesn't want US sellers to sell the DR800SG to me, but I found a way to get one. So, am I not the rightful owner now? Contractual issues between the US seller and the manufacturer/publisher do not concern me. And I would bet that nobody will ever be successfully prosecuted for having an illegal copy, after having obtained it this way. If they ever come after anyone who paid for the book the press would have a field day.

rleguillow
04-27-2010, 08:01 AM
Based on another thread here on MR on the same subject, my understanding is that the author (or author's agent) contracts with the publisher within a limited geographical area so that he/she can also contract with another publisher in a different area and perhaps make more money. Say Author contracts with PubUS and limits PubUS from selling anywhere but in the United States. He then contracts with PubCanada and PubFrance and PubEngland, limiting each to selling in their respective countries. PubCanada doesn't need to worry about competition sales from PubUS. PubFrance and PubEngland don't compete with one another. Everyone wins.

This, of course, is related to pbooks. It makes sense, sort of, if one is thinking about going to the local bookstore and buying a book. It loses all sense when one considers online purchasing, whether of pbooks or of ebooks.

My puzzlement is in that Amazon or another online reseller might sell a pbook but not the same book in ebook format, stating geographical rights. It would seem to me that if the publisher has limited geographical rights, it applies to both formats. Unless, of course, it is a different publisher handling the ebook... or the same publisher under a separate contract arrangement.

Nevertheless, I do believe the whole geographical rights thing is a holdover from pbook contracts that the authors/agents and publishers have not fully thought out. By limiting sales of ebooks geographically, they basically are cutting off their own noses, so to speak. Hopefully someone will see the light. I know it is a whole new world of publishing, but gosh, I've been reading ebooks since at least 2000, one would think in 10 years they might have realized a thing or two. :chinscratch:

My thanks to alvico for posting her website - her books look interesting, and there are some really good links there, particularly http://www.ebooksjustpublished.com/ I'm all over DRM-free! That site has one of her books free till the end of April - I'm going to have to get it of course, and then assuming I enjoy the read, buy her others. Business a la Baen. Works well for me.

DawnFalcon
04-27-2010, 08:18 AM
That is how I see it. I know that DawnFalcon wants to convince us that circumventing regional restrictions is worse than going to the darknet

Legally, the situation is that it is worse. I don't attempt to speak to the moral aspects.

According to the letter of the law there are some minor issues, but our actions follow the spirit of the law.We bought by paying full price to an authorized distributor. Sort of like a gray import.

Incorrect. The purchase location is your PC, not with the importer, and even dealing with an importer you need to show you're permitted to import the goods. Again, I have a written opinion on this, do you? Also, the letter of the law is what is being pushed by big media in many other cases, it's "spirit" is quite irrelevant for civil lawsuits and in UK copyright law, the "spirit" from precedent is that paying for goods you know you not entitled to obtain is not a mitigating factor in any way.

My position is quite clear: If you try hard not to sell me a book, I won't buy it, or take any legal risks whatsoever acquiring it. Or rather, I'll get a second hand paper copy, &biteme if you don't like that because I'd of happily bought a new ebook without DRM and for a reasonable price*. If such was available.

(*Yes, I buy Baen eARC's. No, your book probably won't get me to pay the same amount out. Try building a community to match Baen's and a decent series and release it six months before the paper book, and I'll think about it)

HansTWN
04-27-2010, 08:41 AM
I know your position on this, and am not trying to convince you to do otherwise. However, the question also remains if the law is the same everywhere.

Besides, the situation is quite complicated. The publisher has contract with the seller not to sell to non-US customers. But does that mean that any such sales that do take place are illegal, meaning ownership is not being transferred? The seller may be doing something illegal, but he can claim a good faith effort if he took reasonable precautions. Would the buyer aquire a legal license if the seller knew the buyer was from outside the US and the buyer never claimed he was a resident?

And there are many similar situations in the physical world. Let us say a seller from France sells a car to you in the UK -- and ships it to you from France. He has a contract that he is not allowed to sell outside of France. You take care of the import formalities into the UK. You are the legal owner of the car, aren't you?

How would the situation be if you traveled to the US and downloaded the file while being over there? What if you use a VPN? Aren't you actually using a computer that is physically located in the US?

In the end, why should a contractual agreement between the seller and his supplier bind the buyer?

DawnFalcon
04-27-2010, 09:08 AM
I only claim to be pointing out UK law.

Thing is, by buying, you are agreeing with the site to their ToS, which included obeying their regional restrictions. And for first sales (only), the copyright holder can and does have the right to define the conditions under which you can obtain an authorised copy - this right is sub-licensed to the site on condition that they uphold regional restrictions.

It's licence law, not contract.

"And there are many similar situations in the physical world."

They are simply not applicable. The point of sale is not the same! Sheesh. I'll start using bigger text if you try and use that example again, because it's a completely different situation.

Go argue with the laws which make the point of sale your PC and not the servers.

GeoffC
04-27-2010, 09:54 AM
Gentle now ..... don't get too carried away here .....

DawnFalcon
04-27-2010, 11:06 AM
I am rolling my eyes at repeatedly being told that the book companies will act sensibly (evidence: The RIAA suing people, and their current massive efforts to distort the world's IP law) and that UK law dosn't create issues if you knowingly bypass georestrictions (evidence: A written legal opinion).

Oh, and let's not forget trying to insist that import law works the same way when the point of sale is your PC, or the point of sale is some exporter in another country (Just plain lol).

Elfwreck
04-27-2010, 12:57 PM
It would seem to me that if the publisher has limited geographical rights, it applies to both formats.


Often, but not always. Every aspect of publishing *can* be negotiated separately; some publishers by e-rights in the same areas as their print rights; some buy nonexclusive e-rights (yay Baen!); some buy world e-rights because they can convince authors to hand them over.

Incorrect. The purchase location is your PC, not with the importer, and even dealing with an importer you need to show you're permitted to import the goods.

Says who? Is there a law somewhere that declares where digital purchases take place? (Real question. I know how ebook stores are doing business; I haven't seen any proof that they're doing so because of laws rather than corporate policies.)

Why is the purchase location "your PC," and not "the location of the server from which the purchase order originated?" If I log into a proxy server in another country, why isn't that the location of purchase? After all, my PC isn't connecting directly to the site; it's going through any number of routers to get there.

My PC is the final *destination* of the goods being sold--but I'm not required to hand over my address when I walk into a bookstore, nor do I pay sales tax based on my home address when I'm buying in another city or state. The purchase takes place where the money transfer happens, not where I'm going to take my purchase after I buy it.

If I log into a server in another country, and use a bank in that country to hand over the money, why isn't that just as legitimate as taking a train to Canada to buy a book that's not sold in US stores?

tompe
04-27-2010, 01:03 PM
My PC is the final *destination* of the goods being sold--but I'm not required to hand over my address when I walk into a bookstore, nor do I pay sales tax based on my home address when I'm buying in another city or state. The purchase takes place where the money transfer happens, not where I'm going to take my purchase after I buy it.


Is that according to some law or not? Otherwise why do you assume that the money transfer place decide the purchase place? Why could it not be the place where the transfer of the item you have bought take place?

Elfwreck
04-27-2010, 01:27 PM
Is that according to some law or not? Otherwise why do you assume that the money transfer place decide the purchase place? Why could it not be the place where the transfer of the item you have bought take place?

For physical items, it's the location of the people taking the money; online & phone purchases are listed as occurring in the seller's location, even if they ship the item to another state.

For digital items, the "location of transfer of item" is almost impossible to identify--is that the place where the originator's server is? One of the servers used in the transfer? The final destination? (If it's downloaded to a third-party PC in another country, does that change the purchase?)

tompe
04-27-2010, 02:13 PM
For physical items, it's the location of the people taking the money; online & phone purchases are listed as occurring in the seller's location, even if they ship the item to another state.


According to what? Is it a law? You can define it as the place were the person sending you the item is located also. So why is the definition based on money transfer?

DawnFalcon
04-27-2010, 02:16 PM
Because money (and the tax departments) make the world go round.