Re-selling DRMed ebooks: Legal or not?

[mgmueller]

I think about selling 1 or 2 of my readers, which I rarely use.
I'd like to "spice things up" a bit by adding (some of) the dedicated DRMed ebooks I've bought for the respective unit(s).
My question:
Is it legal (in Germany and in general) to sell the DRMed ebooks?
I've found some answers in the forums, but would like to have more detailled input.
My personal guess:
It's probably not legal.
Thoughts:
Yes, it's legal to sell the DRMed ebooks::
- They still would be DRMed. The buyer of the respective ebook reader wouldn't be able to distribute or even re-download them.
- I wouldn't sell them separately, but bundled to a specific reader. They'd be bound to that specific reader.

No, it's NOT legal to sell the DRMed ebooks:
- Theoretically, I could cancel the ebook reader I've sold from my ebook account, add a new one, reload the books on that again and sell this unit "fully loaded" again. (*)
- I still could read (some of) the ebooks on my other devices. (**)

(*) IMHO, that's not too practical. Mobipocket and others track the number of units in your account. They limit this number (to 4 or 6 at once) and probably easily could document, whether one has had 2, 20 or 200 readers per year active in his account.

(**) Is this actually harming anyone? Now I can read them on up to 6 units as well.

What are your thoughts or informations?

Another, more aggressive question would be:
Where is the line? If, for example, Mobipocket allows 4 units at once:
I could use those 4 activations on my PC, 2 of my ebook readers and on another ebook reader of my wife.
Obviously, I'm allowed to loan it to her.
- But what would be, if I sold it to her? Or to my neighbour instead of my wife?
The distributors REALLY should find a more convenient and convincing solution....

[babalou]

After all I've heard and read so far, I have to say: I guess, it's NOT legal.
Like you say: You could re-sell the very same ebook on and on forever....
"Dead Tree" books you could sell only once....

[oleander]

I say: Give it a try.
Somebody would have to (don't know the exact English term) claim any kind of damage.
To do so, they (for example Mobipocket) would have to prove, that they've had damages. For example, when you would sell the very same ebook (with the very same license) to more than one customer. This they easily could prove in their account database for your units.
And there's a German saying: Where's no plaintiff, there's no judge.
They'd have to check out your customer's unit AND your units.
Even if they'd check ebay or whatever plattform you intend for your sales, they wouldn't know your costomer ID or even the file format or webshop where you've bought them.

Just to make sure: I'm no legal expert at all, can't give any legal advice to you of course.
That's just my opinion concerning %&$($/%/% DRM.

[Elfwreck]

In the US, it's covered by "first sale" rights--yes, you have the right to resell books and other copyrighted material you've purchased. You don't have the right to make copies of them to sell them. So an Amazon Kindle could be sold with the books originally downloaded to it; a memory chip full of downloads of DRM'd ebooks could be sold, and so on.

The fact that selling these ebooks wouldn't necessarily give up the extra copies you made, hasn't been tested in court.

Most ebook sellers declare that they're only "licensed" to the original purchaser. Similar "licensing" attempts haven't held up in court, but ebooks haven't directly been tested. (Software has, and it's been decided that you can resell your boxed software on eBay.)

The concept of "it's a license, not a purchase" only works if it's treated like a license... if you have to return it under certain conditions, or if you make continuing payments, or something like that. The courts have ruled that a seller's label of "license not purchase" is meaningless.

Ebook distributors really try to push a model of "one purchase, one human reader." This model isn't supported by the laws that govern purchases, so they're trying to stretch copyright law in that direction. It almost works, but there are loopholes. It's also not supported by the history of literature, in which book sharing is a key aspect of book appreciation; they're working against hundreds of years of reading culture.

I have no idea what German copyright or resale rights laws might apply.

[Jellby]

I have no real idea about laws, but trying to make some sense (these are only my thoughts, it may be nonsense after all):

You can sell the ebooks you have bought, but you should delete all copies of them once you've sold them. If you sell a device with DRMed books, you cannot remove it from your account(s), so it stays taking a slot in the maximum number of devices.

[mgmueller]

Originally Posted by Jellby

I have no real idea about laws, but trying to make some sense (these are only my thoughts, it may be nonsense after all):

You can sell the ebooks you have bought, but you should delete all copies of them once you've sold them. If you sell a device with DRMed books, you cannot remove it from your account(s), so it stays taking a slot in the maximum number of devices.

With Sony's .lrx, I could leave the unit in my account, so actually the sold unit still would take the slot you describe. Without the unit available, I'd have to ask Sony directly to delete that unit. So it would be easy to prove: No harm, no foul.
But with other formats, for example .prc, I can add or delete any PID anytime. This would be retraceable by Mobipocket, but it can be done even after having sold the unit.

So, solution #1 would be, selling the reader plus the respective ebooks and afterwards deleting all the ebooks from my PC and never again accessing them.
No one could claim any harm, should be possible. As long as it's really bound to licenses (number of units) and not to users (me).

But solution #2 still remains an open question: I can use (depending on the format and provider) 4 to 6 units with the very same ebook. Can I sell one of these and still keep the other 3 to 5?
If it's bound to users (me), it's not legal.
If it's bound to number of licenses (4 to 6 units), it theoretically should be legal. But still the issue remains, deleting the sold units from the account and permanently adding new ones.....

[Jellby]

Originally Posted by mgmueller

But with other formats, for example .prc, I can add or delete any PID anytime. This would be retraceable by Mobipocket, but it can be done even after having sold the unit.

Yes, you can, but that doesn't make it legal or right. What I mean is that it could be claimed that selling the books is legal, but removing the PID from your account is illegal. The fact that you can do something illegal with a tool does not make the tool illegal. You can use a knife to kill people, yet it's legal to buy knife. You can cheat by selling ebooks, yet it's (or should be) legal to sell ebooks.

[wallcraft]

Originally Posted by mgmueller

If, for example, Mobipocket allows 4 units at once:
I could use those 4 activations on my PC, 2 of my ebook readers and on another ebook reader of my wife.
Obviously, I'm allowed to loan it to her.
- But what would be, if I sold it to her? Or to my neighbour instead of my wife?

MobiPocket on its forum has generally taken the position that the 4-PIDs per ebook file defines the boundaries of what you can do (i.e. if you can do something without screwing with DRM then it is "legal"). If you have an ebook file with the PID of your device in the file then it is "legal" (at least not objectionable to MobiPocket) for you to read the ebook on that device. This even applies if your account no longer includes that particular PID (although if you have the ebook file on a Windows PC in the standard mobipocket directory, Windows MobiPocket Reader will likely try to overwrite it with one containing the current PID list).

So, I think it is ok to sell a device with existing DRMed MOBI files on it. This does not allow the buyer to transfer them to another device, so it a sense the original seller still "owns" these ebooks. It is the original seller who can delete that PID from his or her PID list and reactivate for a new device.

I don't know if MobiPocket would object if you sold a PID slot from your list to a 3rd party. This is a bit different from selling a device with ebooks on it. In both case, though, you are not selling all rights to the ebook. Since only you can redownload the ebook with a new set of PIDs in it. Note that MobiPocket is setup to minimize churning of PIDs, they could freeze your account if you tried switching PIDs too often.

[Lilly]

I see a lot of people sell their Kindles with books loaded. They do advise the buyer that the books are DRM and if they delete them from the reader then there's no way of getting them back since the buyer will not have access to the seller archive files. They usually list the genre, book titles, and authors.

I see nothing illegal about it because I had problems with Amazon when I could not register 1 of 2 new Kindles bought by 2 friends to my account; I returned my 1st K1 for a replacement and my K2 twice for a replacement. Amazon told me the reason that I could not register the 2nd kindle is because that would make it 7 licenses; I was like hello, I only own 1 Kindle and that's a K2 (my friends 2 K2 would have made it just 3 Kindles), they removed the licenses of the returned Kindles but not the K1 that I kept until I sold it to buy the K2 in February. So if I knew that before, I could have left all my books on the K1 since it's eating up one of my licenses and I don't even know the new owner. Of course, I decided not to register both of my 2 friends Kindle on my account and had Amazon remove the 1 that I was able to register since I had yet to transfer anything to that Kindle. But this DRM complications is a big mistake because you find ways around them because my 2 friends are reading some of my Kindle books on their Kindle, it's just now I decided that Amazon would not be in the loop!

[basschick]

i could be wrong, but i believe you do not own the ebooks you pay for - you are licensing them. that would mean you do not own them so therefore you cannot sell them. with physical books, you do not own the material but you own the physical copy of the book.

[HarryT]

Look at the terms and conditions of the site where you bought the books. I believe you'll find that on most - probably all - sites, the books are specifically stated to be "non transferrable" and those are the terms that you agreed to when you bought the books. You cannot, therefore, give them to anybody else.

[kaas]

Harry,

I do not know about the UK, but in Germany any contractual clause that is against the law is void. Usually contract even have a "severability clause" to avoid cancelling the whole contract if they messed up and demanded something nonlegal...
It is up to the person to decide whether they are morally obligated to follow a contract they signed, or not (if it is non legal, that is).

cheers,
kaas

[HarryT]

I think personally that if you agree to a set of conditions that you should stick by them. To turn around later and say "I don't like those conditions so I'm going to ignore them" strikes me as being a dishonourable thing to do. Just my personal opinion, of course.

[kaas]

If the other side behaves honourably, I would completely agree with you. If somebody tries to screw me, than " I do unto them" as you English say
I understand that I could choose to simply spend my money elsewhere, but I see no moral obligation where my counterpart also sees none (remember the switched off DRM servers from Amazon).
If I am just a fiscal statement for a company, to be analyzed for potential profit and cut loose as soon as the profit margin drops ( without honouring an previous agreement), I reciprocate in kind...

kaas

[Wario]

I would say that you are in your rights to sell the DRM ebook with your eReader. As long as you don't have any copy (or backup copy) of the ebooks on your computer or other eReaders devices.