CNN: Why can't you 'give' an e-book?

[Over]

Originally Posted by Lexicon

You could avoid the issues involved with people sending you unsolicited ebooks by having the reading system notify you and giving you the option to:

1. Accept the gift and download it to the device.
2. Accept the gift but hold it on Amazon's servers for now.
3. Reject the gift and refund the money to the purchaser.

1 would cover most cases I expect. 3 is obviously a bit rude but should probably be there as an option just in case.

2 is the interesting one. Amazon could implement a system for exchanging undownloaded books, so you could virtually "take back" an unwanted ebook and choose another instead.

I would add an option where we could choose not to be prompted when someone gifts us a wishlisted book.

[nekokami]

Originally Posted by pietvo

But that applies to reverse engineering of software to make the software interoperable. It doesn't talk about breaking DRM on ebooks. Maybe it could be applied to interoperability of e.g. ADE and Calibre for the purpose of conversion of DRM'ed ebooks, but I think that would be a tricky legal debate.

I was thinking that it might apply to reverse-engineering DRM to allow a DRM'd book to be read on a different device. E.g. porting the Kindle software to run on something that doesn't support it, in the form of a pass-through module to another reader. It would be an interesting legal challenge.

[Nathanael]

Hey - Over.

I was just reading through this thread when I suddenly noticed a bug crawling down my screen. I had actually raised my hand to swat my screen when the thing scurried up and disappeared behind my browser window, prompting a closer investigation.

Turned out to be your e-signature.

If I crack my screen, can I send you the bill

[Nathanael]

Originally Posted by Shaggy

You are buying the book, the retailers/Publishers have conned you into thinking all you're getting is a license. Then they use DRM to take away the rights that you're supposed to have according to copyright law.

OK, I'm stepping into this discussion a bit late, but the legal rationale works as follows:

First, all the rights consumers have with respect to pbooks derive from the fact that you have purchased a physical item. For purposes of this discussion, a pbook actually consists of two parts -- the physical book, and the content. When you buy a book you are not purchasing the content (ownership of which remains with the copyright holder), you are only purchasing the physical book. The problem is, in the case of a pbook the content is physically inseparable from the medium, necessitating the complex web of copyright laws in the US designed to balance the rights of the book's "co-owners".

On the one hand, because you own the physical part of the book, US law has developed the first sale doctrine (most countries have similar laws), which entitle the purchaser to do as he will with the physical book, and the copyrighted content goes along for the ride.

This by no means means the purchaser owns the content, however, which is why there are things you are not allowed to do with the pbook you own -- such as photocopy its pages.

Now, keeping in mind the fact that your rights WRT a pbook derive from the physicality of the book and do not extend to the content (save for things such as the first sale doctrine), let's take a look at ebooks.

Digital technology has made possible what wasn't before. Since it is now possible to distribute intellectual property directly, divorced from any physical medium, all those rights we had WRT the physical book, such as first-sale, do not apply.

Arguments such as "but I can give a pbook as a gift" miss this critical distinction. It is first-sale doctrine which entitles you to gift pbooks. Look up the history of the first-sale doctrine and you'll see that publishers and copyright owners fought it tooth and nail before it became law.

This is why ebooks are licensed, not sold. Because an ebook is pure intellectual property without a physical medium, content producers fear "selling" an ebook could be legally construed as a transfer of ownership of the IP itself.

Now, Amazon, B&N, Fictionwise, Apple, et alia, are trying to work out with copyright owners ways of getting intellectual content into your hands that don't imply legal transfer of ownership of the IP. Unlike computer software, in which a EULA is agreed to during installation, not purchase, there is at present no way to force the recipient of a gifted ebook to "sign" a legal agreement.

So imagine if Amazon allowed you to gift an ebook. Since the gift recipient did not enter into any legal agreement, he would presumably be legally free to do whatever he wants with the thing -- torrent it, send out copies to all his friends, whatever. Suddenly there's this legally unencumbered copy of someone's IP floating around the digital ether, with no way for the content owners to stuff the genie back in the bottle. Allowing people to send ebooks as gifts would create a huge loophole in the wall of legal protection content producers are trying to build around the content they own.

Yeah, I don't much like it either, which is why I don't buy DRM-encumbered ebooks. But I understand.

[Nathanael]

Originally Posted by Pagali

I'll personally stick with gift certificates.

Personally, I detest gift certificates, but that may just be my upbringing. I was taught that the biggest part of a gift was the time and effort and thought that went into it. Tossing money at someone in lieu of an actual gift was, in my family, the cheap-n-easy, the metaphorical equivalent of saying, "Yeah, it's your birthday, but I couldn't be bothered, so here's cash instead."

[calvin-c]

Originally Posted by Nathanael

This by no means means the purchaser owns the content, however, which is why there are things you are not allowed to do with the pbook you own -- such as photocopy its pages.

Now, keeping in mind the fact that your rights WRT a pbook derive from the physicality of the book and do not extend to the content (save for things such as the first sale doctrine), let's take a look at ebooks.

1) your're allowed to photocopy a pbook if you want to. You can't (legally) distribute that photocopy, but you can certainly make it. Perhaps you want to annotate the contents but don't want to mark up the book? Perhaps it's a reference book you'll refer to repeatedly, thus wearing out the pages? (If you think that would take very long you've never seen auto repair manuals being used in a garage.)
2) Why shouldn't the first sale doctrine apply to ebooks?

As far as I can see the only 'legal' reason you have fewer rights with ebooks is because of lobbying/bribery by the publishing industry. And, of course, it's legal because it's lawyers who are accepting the bribes.

[calvin-c]

Originally Posted by Shaggy

The question, to me, is why should we need the retailers permission and/or support in order to be allowed to give an item as a gift? What ever happened to buying a product and then doing whatever you (legally) want to with it. Give it as a gift, resell it... whatever.

It's a shame that the corporations have used DRM/DMCA to take away what should be consumer rights, and consumers seem to act like this is normal.

In a sane world there should be nothing wrong with stripping DRM for a use that is already legal under copyright law.

To an extent, you're right. Most of the discussion here has been having the retailer deliver the book however-and that *should* require their permission & support. It can cause real trouble when they ship stuff to addresses not belonging to the purchaser (if you follow what I'm saying). I recall years ago, in college, when a friend purchased a subscription to Hustler (more vulgar version of Playboy for those not familiar with it-just barely non-pornographic enough to be shipped via US mail) as a joke on a friend studying for the priesthood. Of course that was mail-order at the time so the publisher had no way of knowing that the purchaser wasn't the recipient, but I think that shows why they need to be careful when they do know that.

[Nathanael]

Originally Posted by calvin-c

1) your're allowed to photocopy a pbook if you want to.

Are we talking about US law here?

In the US, you are only allowed to make copies of IP under the strictures of Fair Use as set forth in Sections 107 and 108 of US Copyright Law, which is where the well-known four tests come from. Rarely would fair use permit copying of an entire work even for personal use. In addition, you have the copyright notices found in the forematter of nearly any published book. Here are a couple of examples:

All rights reserved. This book may not be reproduced in whole or in part, in any form (beyond that copying permitted by Sections 107 and 108 of the U.S. Copyright Law and except by reviewers for the public press), without written permission from the publishers.

No part of this publication may be reproduced or transmitted in any form or by any means, electronic, or mechanical, including photocopy, recording or any information storage and retrieval system now known or to be invented, without permission in writing from the publisher.

If you want to annotate the book without marking it up, buy a notebook. If your book wears out or gets water damaged because you fell asleep reading in the bath, you'll just have to buy a new copy. Publishers aren't liable for the abuse you submit your books to.

Originally Posted by calvin-c

2) Why shouldn't the first sale doctrine apply to ebooks?

First, because first-sale doctrine derives from the physical medium of a pbook.
You are entitled to do as you see fit with a pbook only because you own the physical book. The intellectual content (which you don't own) goes along for the ride only because it's inseparable from the physical medium.

Second, because you license ebooks, there is no sale, and thus no first-sale doctrine applies.

[Elfwreck]

Originally Posted by Nathanael

Are we talking about US law here?

In the US, you are only allowed to make copies of IP under the strictures of Fair Use as set forth in Sections 107 and 108 of US Copyright Law, which is where the well-known four tests come from. Rarely would fair use permit copying of an entire work even for personal use.

Four factors:
1) Purpose/nature of use: A home copy for annotation purposes leans toward fair use. It's not commercial, and is obviously related to review, might be educational (is at least related to intense personal study of the document), might be a preliminary step towards a published review or critique, which are fair uses. The fact that the copy might be significantly changed--a paperback blown up to letter-sized pages, for example, for easier reading, or a coffee-table sized book shrunk to letter sized--also leans toward fair use, as the copy is shifted in a way that's not otherwise available.

2) The nature of the copyrighted work--Published, meaning some level of copying is likely fair use; if the original work is fiction, fair use is less well-indicated.

3) The amount copied: "Whole thing" leans strongly against fair use. However, entire copies for personal use have been approved, in the matter of Sony vs Universal--you can copy a TV show to watch it later.

4) The effect of the use upon the potential market: Nil. A home copy for annotation has *no* affect on the market. Can't even claim it prevented the person from buying another print copy to mark up; part of the reason for copying might've been to include extra margins, or expand the text to large enough to make notes between the words visible.

Two measures strongly for fair use, one against, one mixed leaning towards against. But these aren't evaluated as binary yes/no traits with 1 point given to each and judges flipping a coin on ties. They're considered as a whole, and "whole book copied for study/markup purposes" leans very strongly toward fair use, even though it is the entire contents of the original.

In addition, you have the copyright notices found in the forematter of nearly any published book. Here are a couple of examples:

Meaningless. Those have no connection to what's legally usable. Some books say that *no* excerpts may be used without written permission from the publisher--they don't even mention reviews.

If you want to annotate the book without marking it up, buy a notebook.

The issue often isn't "without marking it up." Most book margins don't have enough space for detailed markup, and a separate notebook doesn't show at a glance how much more one has noted about one page than the next.

There's also the matter of "in print or not"--if the book's out of print, you can't just buy an extra copy to mark up.

First, because first-sale doctrine derives from the physical medium of a pbook.
You are entitled to do as you see fit with a pbook only because you own the physical book.

That's not what the law says. And as publishers have insisted on the right to treat ebooks (and software, and other intangibles) to the same business laws that control print books & IP, they're stuck dealing with the other side of those laws.

They want to sell ebooks as goods, not as services. They want to not be responsible for how they interact with the buyer's other property, like they would for books--if you buy a heavy book and it breaks your bookshelf, that's your problem; if you buy an ebook and its javascript crashes your computer, ditto. But possibly not, if you didn't buy a book, but a "right to read certain content under certain conditions"--if they're selling licenses-to-use, they're liable for a lot more returns and potential damages, if they didn't make clear what conditions that use could take place in. (Also, if they're selling a license-to-use, they may be required to make that use possible. They may not be able to get away with "only works on Windows computers with IE installed;" if they sold the right-to-read, they may be required to either provide a method for that reading, or a refund.)

Second, because you license ebooks, there is no sale, and thus no first-sale doctrine applies.

In the US, there is a sale, unless they have defined the terms to include a return date/return condition. Saying it's a license doesn't make it so; licenses-to-use are defined by the terms of their contract.

If the terms are, you hand me money, I hand you content, and we never speak again... I don't get to say how you can use the content, and you can resell it when you're done with it.

[Viseguy]

The headline now (2010-08-10 03:26:23 UTC) reads:

Why can't you give Kindle books as gifts?

[Nathanael]

Originally Posted by Elfwreck

Four factors:
1) Purpose/nature of use: A home copy for annotation purposes leans toward fair use. It's not commercial, and is obviously related to review, might be educational (is at least related to intense personal study of the document), might be a preliminary step towards a published review or critique, which are fair uses. The fact that the copy might be significantly changed--a paperback blown up to letter-sized pages, for example, for easier reading, or a coffee-table sized book shrunk to letter sized--also leans toward fair use, as the copy is shifted in a way that's not otherwise available.

I agree with your citation, but not necessarily you're examples, which strike me as speculative. Can you cite specific case law in which, say, photocopying an entire work for the purpose of enlarging the text was found to be fair use? Or where a critical review for publication was allowed ipso facto to copy a work wholesale? Or, indeed, any case in which wholesale copying of print material was allowed simply for the purpose of format shifting?

Originally Posted by Elfwreck

However, entire copies for personal use have been approved, in the matter of Sony vs Universal--you can copy a TV show to watch it later.

The Sony case is not applicable for two reasons: (A) it pertains to audiovideo productions, not print material (you cannot simply assume equivalence); and, most critically, specifically to audiovideo productions that consumers had already been invited to view freely anyway. It's that distinction that explains why it's legal to tape, say, Lord of the Rings off HBO but not the DVD you rented from the video store. (B) The judge found in favor of complete copying in the Sony case specifically because it made little sense to copy only part of a TV program.

Originally Posted by Elfwreck

1) Purpose/nature of use: A home copy for annotation purposes leans toward fair use.

It does? Again, can you cite case law on that?

Originally Posted by Elfwreck

might be educational (is at least related to intense personal study of the document)

"Might be" is speculative. And even if I can prove my use is educational, that doesn't grant me a free pass. And on what basis do you declare that wholesale copying of a copyrighted work is (not "might be" or "sometimes") related to personal study, rather than, say, recreational reading?

All you've done is argue that there are circumstances under which wholesale copying of a copyrighted work could be permitted under fair use. But I was not arguing that wholesale copying could never be permitted. I was replying to calvin-c's blanket statement (see post #51) that "you're allowed to photocopy a pbook if you want to." What you're arguing is quite different.

Originally Posted by Nathanael

First, because first-sale doctrine derives from the physical medium of a pbook. You are entitled to do as you see fit with a pbook only because you own the physical book.

What does the law say?

Originally Posted by Elfwreck

They want to sell ebooks as goods, not as services.

They don't want to sell them at all. They want to license them.

Originally Posted by Elfwreck

In the US, there is a sale, unless they have defined the terms to include a return date/return condition.

Nonsense. Does your copy of Windows have a return date?

Originally Posted by Elfwreck

Saying it's a license doesn't make it so; licenses-to-use are defined by the terms of their contract.

A contract to which you agreed when you purchased your Kindle book.

Originally Posted by Elfwreck

The issue often isn't "without marking it up." Most book margins don't have enough space for detailed markup, and a separate notebook doesn't show at a glance how much more one has noted about one page than the next.

Your examples -- markup, enlarging the text -- are issues of convenience. Heck, I can't recall a single college textbook I ever owned have enough margin space for proper notes. There are certainly alternative ways to accomplish the same thing -- use a magnifying glass or take notes in a notebook. The fact that alternative methodologies might be a bit less convenient hardly mitigates in favor of fair use. Unless, again, you can cite specific case law that says differently.

Originally Posted by Elfwreck

If the terms are, you hand me money, I hand you content, and we never speak again... I don't get to say how you can use the content, and you can resell it when you're done with it.

I hate to sound like a broken record, but case law, please. Otherwise, all I can say is good luck with that.

[Elfwreck]

Originally Posted by Nathanael

I agree with your citation, but not necessarily you're examples, which strike me as speculative. Can you cite specific case law in which, say, photocopying an entire work for the purpose of enlarging the text was found to be fair use? Or where a critical review for publication was allowed ipso facto to copy a work wholesale? Or, indeed, any case in which wholesale copying of print material was allowed simply for the purpose of format shifting?

Copying entire contents of a bit of IP for format shifting has been found legal. Perhaps not for print specifically--but the principles of law are supposed to be applicable to different situations.

Why would it be more legal to copy one's CDs to MP3 than to copy one's books into a 3-ring binder? Saying "but that hasn't been found legal in court" is ridiculous--we don't have an "it's illegal until a court says otherwise" system.

(I'm looking for early copyright cases about early Xerox/mimeo machines; since all that was cleared up before the internet existed, there's not much info online.)

The Sony case is not applicable for two reasons: (A) it pertains to audiovideo productions, not print material (you cannot simply assume equivalence); and, most critically, specifically to audiovideo productions that consumers had already been invited to view freely anyway.

Copyright law doesn't acknowledge a difference between text, image, audio, or video formats. It is not more legal to copy one than another. And while it may not be legal to copy a library book, copying one's own physical property is format-shifting of content you have a right to view. I'm not seeing the difference between "content is displayed at someone else's whim" and "content is your own property." I don't get why it's *more* legal to copy something that someone else legally controls.

A home copy for annotation purposes leans toward fair use.
It does? Again, can you cite case law on that?

TITLE 17 > CHAPTER 1 > § 107
... reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright.
----
Directly states that fair use includes copying for research, comment, and scholarship, and strongly implies that fair use is not limited to the listed purposes.

A contract to which you agreed when you purchased your Kindle book.

Not all contracts are legally valid. That contract says they can change the terms at any time... do you think that, if they changed the terms to say "all Kindle owners will be charged a $200 update fee every time Amazon edits its website," it would hold up in court? If it were changed to say, "Use of Amazon's Kindle books requires that the user never sue or charge with crimes any employee of Amazon.com," would that hold up?

Of course not. Just because their contract says something doesn't mean they can legally insist on those terms.

Your examples -- markup, enlarging the text -- are issues of convenience.

The purpose of copyright, in the US, is to "promote progress." Convenience helps with that.

I hate to sound like a broken record, but case law, please. Otherwise, all I can say is good luck with that.

Court Re-Affirms That First Sale Doctrine Can Apply to “Licensed” Software

[Shaggy]

Originally Posted by calvin-c

2) Why shouldn't the first sale doctrine apply to ebooks?

Exactly. There's nothing about first sale doctrine that limits it to physical items only. US Courts have already ruled that it applies to DRM'd software. An eBook is DRM'd software.

[Shaggy]

Originally Posted by calvin-c

To an extent, you're right. Most of the discussion here has been having the retailer deliver the book however-and that *should* require their permission & support.

True, but there should be nothing wrong with me sending an eBook to someone as a gift myself, as long as copyright laws are followed.

The reason you can't is because the industry has artificially stripped that right from you with DRM/DMCA.

[Shaggy]

Originally Posted by Nathanael

Are we talking about US law here?

Yes. These issues have already been well established in US law. Format shifting, for example, is legal.

First, because first-sale doctrine derives from the physical medium of a pbook.

According to who?

Second, because you license ebooks, there is no sale, and thus no first-sale doctrine applies.

US courts have already ruled on this, and set the ground lines for the differences between content owners claiming a license vs a sale. The way the retailers currently operate with regards to eBooks seems to be clearly a sale transaction. Retailers/Publishers want you to believe that it is only a license, but it doesn't correspond to what the courts have said.