Re: Renting Ebooks

[rlauzon]

Originally Posted by Nate the great

The above examples are explicit agreements. I want to know why there is the assumption that there is an implicit license on an ebook.

This may be the issue you are having.

There is no implicit license. It's explicit when you pay money for the eBook, you are told what the license is.

The problem is that most people just click through the license, making assumptions about what it says. Even if they were to read it, their eyes would probably glaze over with the legal-ese.

Most people assume, though, that when they pay money for an eBook, they are getting the same rights and restrictions that they get when they pay for a pBook.

IHMO, when a company offers a DRMed eBook, they need to make it very clear what the customer is paying for. Not many eBook companies do that.

[Nate the great]

Originally Posted by HarryT

I'm sorry Nate, I don't understand what the issue is. If you go to Fictionwise and buy a book with MobiPocket DRM, say, then the site clearly tells you before you buy it that you will only be able to read the book on certain specified devices, and that you won't be able to print it. Those are restrictions imposed by the DRM mechanism, and you are buying the eBook with the full knowledge of what those restrictions are.

The point is that I was trying to bring up ownership versus license. I wanted to learn the actual legal details.

Please go back and read the first post on this thread. The guy I quoted was not told that his PDFs would be nonfunctional after a year. The first response I got on this thread said to the effect,"Well, yeah. The license he purchased expired". He was not told that he purchased a license. He thought he purchased an ebook.

If you own an ebook, it can't suddenly stop working. If you license it, it can. Remember, he thought he owned the PDF.

Originally Posted by HarryT

We seem to be talking semantics - you can call those restrictions a "licence" if you wish. Whatever you want to call them, the restrictions on your use of that file are certainly legal; you are being told about them before you make the purchase, and are agreeing to the terms of the sale by buying that eBook with those restrictions.

But he wasn't! That is the whole point.

FYI: HarryT, I checked with a lawyer. The definition you apply to the word "license" is not correct in the USA.

Originally Posted by DMcCunney

I think he's complaining about the same thing people have complained about in software EULAs. You are covered by a license agreement you never explicitly agreed to.

His complaint seems far more about what are essentially licensing issues (IE: can he legally convert from one eformat to another) than with copyright per se.
______
Dennis

I was not complaining. I regret that it came out that way.

Conclusion: I started this thread because I wanted to learn about the legal details of ownership versus copyright. I did not learn anything here. I'm going to go analyze the user agreements from the various ebook content providers. I will then post summaries here of exactly what you agree to, such as which one sells you a license and which one sells you ownership.

[JSWolf]

So if I take the books I've downloaded via PG and clean them up and remove all the PG notices, I can then sell them say as MobiPocket, HTML, RTF, BBeB, etc without any legal hassles at all?

[Nate the great]

Originally Posted by JSWolf

So if I take the books I've downloaded via PG and clean them up and remove all the PG notices, I can then sell them say as MobiPocket, HTML, RTF, BBeB, etc without any legal hassles at all?

Yes. That would be completely legal because the books are not protected by copyright.

[rlauzon]

Originally Posted by Nate the great

Conclusion: I started this thread because I wanted to learn about the legal details of ownership versus copyright. I did not learn anything here. I'm going to go analyze the user agreements from the various ebook content providers. I will then post summaries here of exactly what you agree to, such as which one sells you a license and which one sells you ownership.

You got me thinking. So I decided to head over to eReader.com and pretend that I am an eBook newbie.

All the wording that I see is the same as Amazon.com. I see terms like "Price", "Sale price", "Add to cart", "Go to checkout", etc.
Clicking on a book that seem interesting, I proceed to the checkout. I stop just short of actually confirming the purchase. But I see no license agreement anywhere.

Everything that I see says that my eBook purchase is no different from a pBook purchase on Amazon.com.

So I step back and see what I can find on what I can/cannot do with my eBooks. The only topic that I can see that's applicable is "Help." Going through the help, I see little about restrictions.

Buried in the Help is this:
"Without eReader, you will not be able to read eReader eBooks, and other eBook Readers will not work with eReader.com eBooks. eReader.com eBooks are encrypted to protect the authors' work."

Later on, they explain that you need their permission to access your eBooks when you change your credit card.

They do cover printing though: "No, eBooks on eReader.com are not printable."

However, they do say this:
"For the first time, it's now possible to build up your own library of your favorite books that won't ever age or deteriorate!"
Which seems to be contradictory with the other statements in the Help.

But the main problem is this: Nowhere does it say that you cannot re-sell the eBook you "purchase". I cannot find any license anywhere. Everything I see says that I "purchased" an eBook. Yet, with DRM, I have no first sale rights. I obviously have no rights beyond being able to download and read the eBook on approved devices.

I'm not a lawyer, but this reeks of "fraud" to me.

[DMcCunney]

Originally Posted by JSWolf

So if I take the books I've downloaded via PG and clean them up and remove all the PG notices, I can then sell them say as MobiPocket, HTML, RTF, BBeB, etc without any legal hassles at all?

Yes. There are people who do exactly that.

The original text PG works from is in the public domain. It is not owned by anyone, and anyone may take it and do as they please with it. I know a chap in California who takes PG etexts, typesets them, adds covers, produces them through print-on-demand, and sells the actual paper books. He's making a very good living doing it. It's perfectly legal. Like I said, the original text is public domain.

Project Gutenberg requires you to remove their boilerplate and notes, because you don't have the rights to the material they added. Beyond that, they don't care. Their mission is to preserve literature that would otherwise disappear, by getting it into electronic format where it may be archived and converted. If you put it in a different format and offer it, fine by them. You are helping keep the texts alive.

What you are talking about is exactly what Munseys and Manybooks.net do, though they don't charge for the works they make available.
______
Dennis

[DMcCunney]

Originally Posted by rlauzon

But the main problem is this: Nowhere does it say that you cannot re-sell the eBook you "purchase". I cannot find any license anywhere. Everything I see says that I "purchased" an eBook. Yet, with DRM, I have no first sale rights. I obviously have no rights beyond being able to download and read the eBook on approved devices.

I'm not a lawyer, but this reeks of "fraud" to me.

I wouldn't go so far as to call it fraud.

But meanwhile, drop them a note and ask them.

The question comes up all the time with software: "Can I re-sell a piece of software I've purchased?" The answer depends on the license agreement, but the best case boils down to "Yes, if you turn over everything you got when you bought it, and you don't keep a copy yourself."

Transfers of license also require the approval of the vendor of the software. You are the registered user, and assuming they approve, their records must be updated to reflect the new owner.

It's the "not keeping a copy for yourself" that is the sticky part. You licensed the right to read it on your own devices. You did not license the right to reproduce and distribute it, and if you sold a copy while keeping one for yourself, you would be doing so.
______
Dennis

[nekokami]

The fine print on a typical pbook: This book may not be reproduced, in whole or in part, by mimeograph or any other means, without permission. Here's another: All rights reserved, including the right to reproduce this book, or portions thereof, in any form. Third example: All rights reserved. This book, or parts thereof, may not be reproduced in any form without permission.

These were just taken from the first three books I picked up from the stack in my room. I don't know if you want to call this a "license," or some other restriction, but it's pretty clear that while you own the physical book, you don't own the right to reproduce the book.

That being said, was the original question whether you could sell your one and only copy of an ebook, with or without its DRM? Legally, it's an interesting question. If I buy an ebook and read it, then I want to sell my copy to someone else but DRM prevents my doing so, I might actually be allowed by law to sell my copy (my license, in effect), and if the original seller doesn't provide some other way to transfer ownership, it might be argued that it's permissible for the new purchaser to break the DRM. This assumes that I do not retain a copy of the work, of course -- I am not "reproducing" or "copying" the work, but transferring it. From an electronic point of view, this distinction is meaningless, but from a legal point of view it might not be.

Nate, is that what you were really asking?

[Nate the great]

Originally Posted by nekokami

The fine print on a typical pbook: This book may not be reproduced, in whole or in part, by mimeograph or any other means, without permission. Here's another: All rights reserved, including the right to reproduce this book, or portions thereof, in any form. Third example: All rights reserved. This book, or parts thereof, may not be reproduced in any form without permission.

These were just taken from the first three books I picked up from the stack in my room. I don't know if you want to call this a "license," or some other restriction, but it's pretty clear that while you own the physical book, you don't own the right to reproduce the book.

That is not a license statement so much as it is a strong wording of the copyright. It is understood that you can still reproduce the book in certain ways under fair use.

But most license statements remove any possibility of fair use exceptions as well as some of your rights over your property. Here is a critical part of the "Terms of Use" license agreement from Fictionwise:

All eBooks at Fictionwise.com are the exclusive property of the publisher or its licensors and is protected by copyright and other intellectual property laws. The download of these product(s) is intended for the Fictionwise Member's personal and noncommercial use. Any other use of eBooks downloaded from Fictionwise.com is strictly prohibited. Users may not modify, transmit, publish, participate in the transfer or sale of, reproduce, create derivative works from, distribute, perform, display, or in any way exploit, any of the content of these product(s), in whole or in part. By downloading Fictionwise eBooks, the User hereby acknowledges and agrees to these terms.

I'm too tired right now to parse this out. It should be clear what rights this agreement takes away.

After reading the license, the question that comes to my mind is:

How the f*** do they expect to enforce it?!?

[nekokami]

Originally Posted by Nate the great

Users may not modify, transmit, publish, participate in the transfer or sale of, reproduce, create derivative works from, distribute, perform, display, or in any way exploit, any of the content of these product(s), in whole or in part.

The bolded part would appear to be the relevant bit for the purposes of this discussion. To my mind, the explicit ban on resale or transfer seriously devalues the purchase (or license or whatever you want to call it). When I buy books, I expect to be able to share my copy (where "share" indicates non-simultaneous use).

I wonder if this would be subject to the same challenges as EULAs are now being subject to, regarding the limits of "contracts of adhesion"? Specifically, the words "sale" and "purchase" are used, and the word "license" is not, so it may not be legal in some sense to restrict the user in this way.

This still isn't as nasty as the expiring PDF problem that started this thread. If the users weren't notified up front that access to the PDF would expire, there may be grounds for claiming a breach of contract. (I am not a lawyer, however, and can't say how strong these grounds might be.)

[HarryT]

Originally Posted by JSWolf

So if I take the books I've downloaded via PG and clean them up and remove all the PG notices, I can then sell them say as MobiPocket, HTML, RTF, BBeB, etc without any legal hassles at all?

With the exception of those few PG books which are still in copyright - yes, you can do exactly that.

[HarryT]

Originally Posted by Nate the great

All eBooks at Fictionwise.com are the exclusive property of the publisher or its licensors and is protected by copyright and other intellectual property laws. The download of these product(s) is intended for the Fictionwise Member's personal and noncommercial use. Any other use of eBooks downloaded from Fictionwise.com is strictly prohibited. Users may not modify, transmit, publish, participate in the transfer or sale of, reproduce, create derivative works from, distribute, perform, display, or in any way exploit, any of the content of these product(s), in whole or in part. By downloading Fictionwise eBooks, the User hereby acknowledges and agrees to these terms.

I'm too tired right now to parse this out. It should be clear what rights this agreement takes away.

After reading the license, the question that comes to my mind is:

How the f*** do they expect to enforce it?!?

Why should they have to enforce it? The information about what you can and cannot do with the book is available to you before you buy - a request not to "share" books is in almost every "sidebar" of the site. If you feel that you are unable to comply with these conditions, then you shouldn't be buying books from that site.

The majority of books at Fictionwise are not DRM protected, and are reasonably priced - typically $5-7. That's much cheaper than the price of a typical paperback here in the UK, and at that price point, I think personally that Fictionwise are selling at a fair price and that one should honour the terms under which you're buying the book. I feel the same with other publishers who are selling at "sensible" prices, such as Baen.

Pretty much the only thing I can spot in the above terms and conditions which is not simply a restatement of copyright law is the prohibition on transfer and resale. All the rest is covered by copyright.

[rlauzon]

Originally Posted by DMcCunney

Transfers of license also require the approval of the vendor of the software. You are the registered user, and assuming they approve, their records must be updated to reflect the new owner.

It's the "not keeping a copy for yourself" that is the sticky part. You licensed the right to read it on your own devices. You did not license the right to reproduce and distribute it, and if you sold a copy while keeping one for yourself, you would be doing so.

You missed the point.

They never explicitly said any of this.

All the wording on their site said that I purchased an eBook, no differently than if I had purchased a pBook on Amazon.com. The expectation that I would have as a purchaser would be that I could do anything with that eBook that I could do with a pBook.

There was no license anywhere that I could find. At the very least, to claim that I was bound by a license, there should be something that I agree to when I check out and a license that I could read. There was none.

[Nate the great]

I don't know how I missed this before. I thought I read it the agreement carefully.

You acknowledge that you do not acquire any ownership rights by downloading copyrighted material.

from: http://www.fictionwise.com/terms_of_use.htm (from part 2-B, second to last sentence)

That pretty much ends this discussion.

[Nate the great]

Originally Posted by rlauzon

You missed the point.

They never explicitly said any of this.

All the wording on their site said that I purchased an eBook, no differently than if I had purchased a pBook on Amazon.com. The expectation that I would have as a purchaser would be that I could do anything with that eBook that I could do with a pBook.

There was no license anywhere that I could find. At the very least, to claim that I was bound by a license, there should be something that I agree to when I check out and a license that I could read. There was none.

I have to back him up on this. I looked carefully and there is no agreement anywhere on ereader.com.