Does DRM violate the 1st Sale doctrine

[Pardoz]

Originally Posted by Ralph Sir Edward

This is not trivial. I purchase a data file X, from a legitimate purveyor of said data file. How can I prove that I purchased said data file, as opposed to a claim that the file was obtained in an infringing manner? the purveyor may no longer be in business, or have purged their purchase records. Since data files have no physical existence, I can't point to an object showing original purchase.

...huh. An aspect to this whole mess I hadn't previously considered, I thank you for bringing it to my attention.

[kennyc]

Originally Posted by Pardoz

...huh. An aspect to this whole mess I hadn't previously considered, I thank you for bringing it to my attention.

There should be a clear purchase trail, either in an email record of the purchase or more likely in the credit card or pay-pal data to validate a purchase.

Not really any different from purchasing anything else.

[DawnFalcon]

Ralph - I think it's worth noting more strongly that the courts of appeals are geographical, and how rulings work. Rulings from the same circuit tend to be adhered to, and rulings from other circuits tend to be persuasive but are not binding.

Combined with different state laws, this is why you often get EULA's specifying they're under the laws of certain American states which have made rulings which suit the EULA.

Also, Ralph, Vernor v Autodesk is being heard by the 9th Circuit's Court of Appeals, which is almost certain to produce a solid opinion on some of these issues (And it's significant because it's the largest Circuit, and is liberal-leaning).


kennyc - Purchase data often misses details such as the original format, though.

[Elfwreck]

Originally Posted by kennyc

There should be a clear purchase trail, either in an email record of the purchase or more likely in the credit card or pay-pal data to validate a purchase.

Not really any different from purchasing anything else.

Several publishers offer occasional free downloads, with no registration required. I have no way to prove that my copies of those ebooks (for example, the Harlequin freebies) were acquired from the Harlequin website instead of a torrent network or Rapidshare collection.

If I re-download those from a torrent (because, perhaps, it works better than direct downloading), what have I stolen--site hits? What's the value of the "theft" in that case?

The same problem exists with paid ebooks--while there may be a record of my purchase somewhere (if they don't purge their records; physical stores don't keep a list of who-bought-what forever), there's no way to indicate that the ebook on my Sony right now was legitimately acquired. (If I ran a fictionwise multiformat book through Calibre to convert it or fix the metadata, was it legitimately acquired, or is that an unauthorized copy?)

If I bought a multiformat book from Fictionwise but don't have it with me, and don't have access to login to re-download it, and I get a new copy from rapidshare, there's no way to prove that copy is not legit. (And again... what have I stolen? If I could login to Fictionwise, I could re-download it.)

[Greg Anos]

Originally Posted by kennyc

There should be a clear purchase trail, either in an email record of the purchase or more likely in the credit card or pay-pal data to validate a purchase.

Not really any different from purchasing anything else.

A credit card purchase may not show the necessary detail. In addition, will you always carry all your purchasing details with your purchases as meta-data? This is particularly a problem with promotional "give-away" works for a period of time.

For physical property, someone has to swear out a warrant, provide probable cause that I stole something, and accurately describe the item, usually down to the serial number.

With a digital property, nothing is provable. I might be able to show I bought a digital copy, but there is nothing to prove that any particular copy is that copy. Not even the meta-data. It could be easily modified by any bit level editor. (For example HexEdit 3.0, available as a free download.)

[Greg Anos]

Originally Posted by DawnFalcon

Ralph - I think it's worth noting more strongly that the courts of appeals are geographical, and how rulings work. Rulings from the same circuit tend to be adhered to, and rulings from other circuits tend to be persuasive but are not binding.

Combined with different state laws, this is why you often get EULA's specifying they're under the laws of certain American states which have made rulings which suit the EULA.

Also, Ralph, Vernor v Autodesk is being heard by the 9th Circuit's Court of Appeals, which is almost certain to produce a solid opinion on some of these issues (And it's significant because it's the largest Circuit, and is liberal-leaning).


kennyc - Purchase data often misses details such as the original format, though.

Sorry DawnFalcon, it was too long a post to start with... (And I was unaware that Vernor was being heard by the appellate court.)

[pholy]

Does anybody know how this "first sale" or "exhaustion of rights" principle applies in Canada? I'm particularly interested in this case... (duh). How about other countries?

[kennyc]

Originally Posted by Elfwreck

Several publishers offer occasional free downloads, with no registration required. I have no way to prove that my copies of those ebooks (for example, the Harlequin freebies) were acquired from the Harlequin website instead of a torrent network or Rapidshare collection.
...

Well true, but we were actually talking about the converse of that ....i.e. when a book is PURCHASED legitimately. There should be some record of that. And while the opposite may not be true, there probably is a record or account or substantiation of the publisher/owner offering it as a free download at some point. And being so, I wouldn't think there would not be any occasion to have to "prove" it was purchased.

[DawnFalcon]

Originally Posted by Ralph Sir Edward

Sorry DawnFalcon, it was too long a post to start with... (And I was unaware that Vernor was being heard by the appellate court.)

No problem

I do think it's important though...there's no guarantee of consistency in US law, it's more than a mild headache (And why many promotions simply don't run in the lower-population US states, heh).

As to Vernor being heard, well, you know now


pholy - In the EU, it's known as "Exhaustion of rights" (Although this also addresses some wider IP rights, confusingly enough)

[Elfwreck]

Originally Posted by kennyc

Well true, but we were actually talking about the converse of that ....i.e. when a book is PURCHASED legitimately. There should be some record of that. And while the opposite may not be true, there probably is a record or account or substantiation of the publisher/owner offering it as a free download at some point. And being so, I wouldn't think there would not be any occasion to have to "prove" it was purchased.

There's no record that allows my online purchases to be tracked to *me* if I took a few steps to prevent it.

Many are done through PayPal, which links to my bank account, which links to my identity... unless I close that bank account & shut off that PayPal account. The records are still there, but it'd take a court order to get them, *and* they'd be difficult to legally link to me in the future--if I move to another city, change my account info, change my name (all of which many women do when they get married), there's no proof that I made that purchase.

But tracking a legal purchase isn't the problem. The problem is that the *ebook itself* contains no purchase info. There's a record, somewhere, that I bought "Search for the Sun." However, that record doesn't prove that all the copies of it on my hard drive--lrf, epub, pdb, and pdf--are legitimate downloads based on that purchase.

Unless there's a claim that "purchasing an ebook gives you the right to download additional copies of it, from any source, at will," this is problematic. (At least, problematic for publishers who want to file lawsuits against those who have unauthorized copies.)

[JSWolf]

Originally Posted by Xenophon

Sorry I'm late to this thread. That said, Elfwreck's post just above is spot-on. According to US courts (and paraphrasing a bit, here): "If it looks like a sale, and smells like a sale... it's a sale! Regardless of what the EULA says."

And that's a darned good thing, too!

Xenophon

But the issue is that once you sell the original CD/DVD the software came on and removed all copies from your system, that's it, it's gone. You no longer have access to it. If you sell an eBook and remove all copies you have, you may still be able to download it again. That's the real issue here. You cannot sell an ebook and lose access to it (in most cases). So How do you sell an eBook without having any access to it after the sale?

[Pardoz]

Originally Posted by kennyc

There should be a clear purchase trail, either in an email record of the purchase or more likely in the credit card or pay-pal data to validate a purchase.

I've got some books here I bought years ago with a credit card I no longer have issued by a bank I no longer use, sold by a publisher that went out of business years ago, and the purchase trail goes to an email address that no longer exists. Validating that would be a major pain.

[JSWolf]

Originally Posted by kennyc

There should be a clear purchase trail, either in an email record of the purchase or more likely in the credit card or pay-pal data to validate a purchase.

Not really any different from purchasing anything else.

I've bought an eBook. I've deleted the email receipt. The company that sold it is out of business or no longer has the records to say they've sold it to me. So how can it be proven that this was or was not a legally obtained eBook?

[Elfwreck]

Originally Posted by JSWolf

But the issue is that once you sell the original CD/DVD the software came on and removed all copies from your system, that's it, it's gone. You no longer have access to it. If you sell an eBook and remove all copies you have, you may still be able to download it again. That's the real issue here. You cannot sell an ebook and lose access to it (in most cases). So How do you sell an eBook without having any access to it after the sale?

That I still have access to those books is not indication that I've done anything illegal with them. Ebook stores should be willing to remove titles from a download library on request--or transfer them to a different person's account.

If I sell my house, and the construction company keeps sending me new sets of keys, that's not my problem. Doesn't mean I can't sell the house. If I use those keys, I'm guilty of trespassing--but having potential access isn't the same as breaking the law.

[JSWolf]

Originally Posted by Elfwreck

That I still have access to those books is not indication that I've done anything illegal with them. Ebook stores should be willing to remove titles from a download library on request--or transfer them to a different person's account.

If I sell my house, and the construction company keeps sending me new sets of keys, that's not my problem. Doesn't mean I can't sell the house. If I use those keys, I'm guilty of trespassing--but having potential access isn't the same as breaking the law.

But with a paper book, you sell it and it's gone. You no longer have access to it. You cannot just walk into the bookstore you bought it from and pick up another and freely walk out with it. You have to pay to get another one. But with an an eBook, you can go back to your online shop and download it again. Also, if you don't have the receipt how do we know you didn't say get it from the library and claim you got it from someplace that's out of business?

Personally, I feel I should have the right to sell eBooks that I no longer will read again that I legally obtained. But is it legal to format shift and sell the newly format shifted copy? Can I sell the original with the format shifted copy? Can I sell without DRM since I've striped it? If I don't sell with the DRM shifted, I'll never get to sell it.