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Old 02-19-2010, 05:07 PM   #1
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Does DRM violate the 1st Sale doctrine

In this thread here (http://www.mobileread.com/forums/sho...t=74365&page=8) Xenophone points to the first sale doctrine when discussing copying of books. Given the doctrine, how then can publishers include DRM on an ebook that specifically prohibits your ability to do that?

Maybe there is something simple I'm missing so if someone knows I'd like to know as well.

thanks
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Old 02-19-2010, 05:14 PM   #2
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Hi Dave,
The first sale doctrine exists specifically because with paper books, the content and the media cannot be separated. Although you don't own the content, you own the package (the paper) and can sell the paper should you wish, assuming you've bought it legally in the first place. The logic of this doctrine does not apply to eBooks which are separate from the media on which they're displayed.

Whether DRM is a good idea is a good question. So is whether readers should patronize publishers who impose it. As a small publisher who does not impose DRM on eBooks I publish, as well as a reader, I tend to agree that DRM imposes costs in excess of any benefits it offers. In my opinion, refusing to buy eBooks with DRM and letting the publisher (and distributor) know that's why you're not buying is a far more effective tactic than making flawed legal arguments.

Rob Preece
Publisher, www.BooksForABuck.com
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Old 02-19-2010, 05:26 PM   #3
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That's the billion dollar questions and I would say the answer is that the courts haven't really decided whether first sale applies to ebooks (mainly because most retailers and publishers argue you buy a license to read the book not the book itself).

For some more info you might find this article of interest.
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Old 02-19-2010, 08:06 PM   #4
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Thanks for the replies. I did not realize that the doctrine was related to the media and content being joined - your right that really doesn't apply to eBooks, on the other hand there really is no media at all.

And I didn't even get into the rightness or wrongness of DRM question -- since there are already several threads going on about it right now. I was just curious about this one part of it.

thanks again
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Old 02-19-2010, 08:50 PM   #5
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THe issue is that digital content is much different than physical content.

If I buy a paper book and read it and sell it to a used book store, I no longer have a copy. And when someone buys it used, the publisher lost one sale.

If I buy an e-book, I could strip the DRM, keep my copy and give it to multiple friends, put it on torrents site where 100s or thousands may download it and give it to their friends, put it on different torrent sites etc. All the while I still have my copy.

So publishers have a lot more to lose from e-books being pirated than they do used book stores. Each physical copy of a book sold and the traded/resold etc. can only be in one persons hand's at a time. One copy of an e-book can have DRM stripped and then spread to an unlimited number of people.

The shift to digital media is a terrible frightening thing for publishers/authors, record labels/musicians, video game developers, movie studies etc. as the ease of people getting copies of your products without paying for them is vastly greater than it was in the past.
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Old 02-19-2010, 09:02 PM   #6
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And that is exactly at the core of it and what COPYRIGHT is about it has nothing to do with the physical item it's the RIGHT TO COPY, which is granted by law to the original creator of the item (whether a book, story, movie, music, ...).

The only person that has that right (with certain other exclusions) is the copyright holder. For anyone else to perform that action is to steal that right from the owner. Theft.
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Old 02-19-2010, 09:05 PM   #7
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Exactly. When a physical book is sold to a used book store, given away etc., nothing is being copied. A copy is being transferred, and the original owner no longer has one.

With digital downloads, piracy etc. copyrighted material is being copied and illegally distributed etc.

And downloading a digital copy of something you didn't pay for is the closest you can get to theft for digital product since there's no way to shoplift it etc.
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Old 02-19-2010, 09:08 PM   #8
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Horse is already out of the barn

The cat is already out of the bag as "first-sale" disappeared years ago as it relates to software. All software is sold under license and if you read most EULAs you are prohibited from selling or giving it away. It would seem that everyone has meekly bought into this idea and it was only a matter of time before it was applied to ebooks, which, one might argue are a form of software.

There is an excellent summary of the issues related to first sale at http://en.wikipedia.org/wiki/First-sale_doctrine. I was not aware of the Clayton Act nor that some aspects of EULAs are unenforceable in some states.

Last edited by ecw0647; 02-26-2010 at 03:06 PM. Reason: additional information
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Old 02-19-2010, 09:22 PM   #9
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Yep, that's the one place where digital downloads are a boon for content companies--it stands to kill used sales.

As you note, you can't buy a used copy of software as you're buying a license.

Publishers, video game companies etc. are drooling at the thoughts of going to digital download and driving the used book stores, Gamestops etc. out of business and not losing so many sales to second hand sales.

But the risk is piracy makes it much easier for people to get copies for free than it is with physical media where you either buy new, buy used, get a copy from a friend, or steal a copy. Now you can just go online and download a copy of something you didn't pay for, which feels like less of a crime/moral wrong to most people.
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Old 02-19-2010, 11:31 PM   #10
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I'd argue that if i buy a physical book, it's mine I can sell it. If what I'm buying is a license then that is mine and again I can resell it, when you consider the ridiculous DRM that so many content providers are trying to push I don't see how they can even argue it with a straight face. They have the ability to de-authorize a copy if the license is transferred.

You'll probably argue that I might have broken the DRM and still have a copy? Well if i rip a Cd and then sell it to a used cd place I've done basically the same thing. That's a violation of copyright, that would open me up to a lawsuit, one I'd probably lose, fair enough but it doesn't change MY property rights over the things I've legally obtained be they book cd license or toaster I can throw it on ebay or in the trash give to my long lost evil twin.
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Old 02-19-2010, 11:40 PM   #11
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Quote:
Originally Posted by dsvick View Post
Thanks for the replies. I did not realize that the doctrine was related to the media and content being joined
It's not. First sale has nothing to do with content vs media.

Yes, you absolutely should have first sale rights when eBooks, but DRM is preventing it. Why... because nobody has taken them to court over it yet.
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Old 02-19-2010, 11:41 PM   #12
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DRM is mainly an issue at the moment because it is just so terribly implemented.

If it was implemented in way that gave me the same rights I am accustomed to with print books then it would be fine. But no, most types of DRM are terribly restrictive. The main one is lending - they need to provide the ability to lend an entire ebook to a friend. I don't care if I can't read it while it's 'checked out' and my friend has it, that's replicating how print books work.

But at the moment they want to charge us too much, for less rights. They restrict rthe usage of the books so much that people who pirate the book get more value. It's obscene.
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Old 02-19-2010, 11:43 PM   #13
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Quote:
Originally Posted by BooksForABuck View Post
The first sale doctrine exists specifically because with paper books, the content and the media cannot be separated. Although you don't own the content, you own the package (the paper) and can sell the paper should you wish, assuming you've bought it legally in the first place. The logic of this doctrine does not apply to eBooks which are separate from the media on which they're displayed.
That's absolute nonsense. First sale has nothing to do with content vs media. First sale says if you own something, you can sell it. You certainly do own a single copy of the content, it makes no difference if that copy is paper or digital.
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Old 02-20-2010, 12:06 AM   #14
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The only doctrine that matters to me is my doctrine. My doctrine says that DRM is wrong, and I will liberate ALL ebooks I buy from it immediately. DRM is a virus and the downloaded file needs to be clean. Breaking goofy rules bought by special interest money is not something that keeps me up at night....
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Old 02-20-2010, 09:16 AM   #15
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IANAL and I have not followed any relevant case law BUT...

I was wondering if there has been any significant case law as to whether "software licenses" are legally binding. (If I remember correctly, I think a court just threw out a website's "terms of use" agreement because the customer could access the website's content without explicitly agreeing to the terms of use, i.e. it was a non-binding "agreement")

It would seem to me that "software licenses" (in lieu of sales) are a dubious notion. Why? No signed contract and thus no formal registration (no way for the company to prove who owns which license). No way to prove the signer is over the age of 18 years. No way for the consumer to get a refund if you refuse the terms of the license (since most stores refuse refunds and only allow exchanges) but the license cannot be read or agreed to prior to purchase.

Now, since most software, ebooks, mp3, etc are sold as "licenses" and not sales, if this concept is ever dismissed in court, then by default the "First Sale Doctrine" would apply to all digital files (media, software, etc.) since they are undoubtedly selling you something, i.e. requiring money before the user is granted access to the product. And thus DRM would be illegal because it violates part of the consumer's First Sale Doctrine rights.

Of course, this would create bloody hell in the courts...not just over digital media, but things like cars (with proprietary software that the user cannot access, only dealers) and a number of other business process patents.

But it sure could be interesting.
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