Another wrinkle in sale-vs-license

[Purple Lady]

Originally Posted by Kali Yuga

When did publishers explicitly claim that ebooks are licenses rather than sales?

Maybe this is why more publishers don't sell their ebooks online themselves? They sell them to sellers who expicitly state that they are selling licences, not books. That way the publisher doesn't have to pay as if they sold a license.

from Amazon's terms of use

Unless otherwise specified, Digital Content is licensed, not sold, to you by the Content Provider.

[snipenekkid]

Originally Posted by SensualPoet

That depends on the contract re: royalties. The argument seems a bit of a stretch. But, that's why God created lawyers.

just proves that cranky old bastage has a twisted sense of humor!!

[snipenekkid]

Originally Posted by Purple Lady

Maybe this is why more publishers don't sell their ebooks online themselves? They sell them to sellers who expicitly state that they are selling licences, not books. That way the publisher doesn't have to pay as if they sold a license.

from Amazon's terms of use

but ultimately who is now the "content provider"? Basically the publishers cannot have it both ways. Even if they try and weasel it as they are selling a product to, say, Amazon who they only permit to sell licensed copies. It could have teeth but I just hope not. I don't even play a liar lawyer on TV so not even a guess.

Still I cannot believe that publishers are the first to consider this tactic. I have to believe that MP3 downloads are sold as an unlimited license to sell copies as licensed copies rather than as real goods. If it that way and it has been tested in the courts the publishers might get away with it, well until this new ruling. But in reality I see it as only affecting the artist-publisher side of things rather than the publisher-retailer-end consumer side of things.

Still it could be fun to grab a bucket of popcorn to watch the fun.

[Purple Lady]

Originally Posted by snipenekkid

but ultimately who is now the "content provider"?

according to amazon.com

"Content Provider" means the party offering Digital Content in the Kindle Store, which may be us or a third party; however, for Digital Content designated as active content in the Kindle Store, "Content Provider" means the publisher of the Digital Content.

so what's "active content in the Kindle Store"? or am I taking that too literally?

[pdurrant]

Originally Posted by Purple Lady

Maybe this is why more publishers don't sell their ebooks online themselves? They sell them to sellers who expicitly state that they are selling licences, not books. That way the publisher doesn't have to pay as if they sold a license.

That's what the court case at the root of this thread was deciding.

The judgement was that publishers couldn't in any way be said to be selling electronic music files to the retailer for resale (or anything else). Instead they were licensing the retailer to make copies of a master file.

[Andrew H.]

Originally Posted by pdurrant

What's interesting, I think, and I haven't seen it mentioned in this thread, is that the licencees in this case are not the public who buy copies of the music. They are the retailers selling copies of the music.

So the case says nothing about whether the ebooks we buy are really sold or licensed. But it does say that Apple, Amazon, etc., are licensing the master copies from the producers, and any fees paid by them to the producers of the originals for this are license fees, not wholesale prices.

Yes, this is a key point...in fact, in a couple of places the opinion clearly distinguished between the licensee (who was in privity with the publisher) and the end user/downloader (who downloaded the music from the licensee).

Most of this is going to be a matter of what the specific contract says, of course. But I'm curious how this would play out since the larger publishers now use the agency model - are they actually selling a license to Amazon, etc. at all?

[pdurrant]

Originally Posted by Andrew H.

But I'm curious how this would play out since the larger publishers now use the agency model - are they actually selling a license to Amazon, etc. at all?

Oh, what a good point. I hadn't thought of that, but I think you may be right. Under the Agency model, perhaps the retailers aren't (legally) buying anything, just being paid for providing a service.