[Xenophon]

Lots to say about this, look below the quotes.

Originally Posted by stonetools

Er, except that they didn't legally BUY the BOOK: they bought a license to access the efile, which remains on the bookstore's servers.
I really blame the publishers for this: they should pop up a EULA every time they do a transaction, so that people could at least LOOK at what they're agreeing to. But in the interest of 1-click purchasing, Amazon and others dispensed with that, so now we have lots of entitled people talking about their "right of first sale" as if title to the actual file changed hands.
In any case, whatever the nature of the transaction, the author's copyright should remain inviolate. Breaking DRM is generally preparatory to violating the author's copyright , as in "sharing" an ebook with family and friends.
I think the era of the person who buys a dedicated reader but wants to buy a book from some other store is passing, anyway, so that reason for breaking DRM will soon go away.

Originally Posted by ApK

No, sorry. It's a license. Stonetools is wrong to keep referring to the 'file.'

The 'file' is irrelevant, just as the paper and ink of a DTB is irrelevant in this issue.

Do what you want with the file. Do what you want with the paper.

But even in the DTB, read the copyright page. It give you LICENSE to do certain things with the IP content, just as your ebook LICENSE does.

You can burn the paper if you want, the paper is yours. But you can't transcribe the entire contents to your public web page. The content doesn't belong to you. Let's not be daft about this smokescreen distinction.

Originally Posted by stonetools

I should bookmark this page

AMAZON LICENSING AGREEMENT


When you "buy" a Kindle book, this is what you agree to. You may not think you are getting this, but this is what you get.

For purposes of our discussion, its largely irrelevant. The Author's copyright applies whether its a sale or license. But more prominent display of this would cut down on self-righteous rhetoric about how DRM interferes with "their" property that they "bought."

There's plenty of semi-relevant case law on this question (in the US, at least). Sadly, the available precedent fails to usefully clarify whether you've bought "a license" or "the book."

We do know a few things, however.

• We know that the fact that Amazon (or whomever; I'll just say "Amazon" going forward) calls it a license in their agreement has very little impact on whether the courts say it's a license. And what the courts say is what really matters. For example, if some other part of Amazon's representation to the customer calls it a sale -- or even strongly implies that it's a sale -- that can make it a sale. A "buy now" button has been enough to meet this test in some previous cases, even when the "Licensing Agreement" said otherwise.
• When the legal agreement lacks terms requiring the customer to return the item (when the license terminates, for example), the courts have often held that the transaction is a sale, rather than a license.
• Even when neither of the above applies, courts have applied a test that sure looks to me (remember that I Am Not A Lawyer!) like "If it looks like a sale to a reasonable person, it's a sale and not a licensing arrangement. Doesn't matter what the fine print says."

None of this has any bearing on the author's copyright rights in the work, of course. But it means a lot in terms of first-sale doctrine. I suppose that I should also note that current case-law is inconsistent on this front. Consequently, anyone strongly espousing any position other than "we don't really know, yet" is waaaaay out in front of the facts on the ground.

Apk's post is an interesting mix of confusion and correctness. The first three paragraphs are overly certain (see my commentary above). The 4th paragraph copyright page addresses copyright law, which is very very different from sale-vs.-license. He gets it right, too, except for the trailing " ...just as your ebook LICENSE does" which is irrelevant. The final paragraph is spot on.

The final quote from stonetools is, once again, overly certain of the applicability of the Amazon licensing terms. He's absolutely correct, however, that the author's copyright applies without regard to license-vs.-sale issues. He's wrong, however, that the question of license vs. sale is a red herring -- it's a key part of the legal questions regarding what an individual user can legally do about the DRM that may or may not be present on an ebook that they have legally acquired.

I remind stonetools yet again, that the DMCA is self-contradictory on the subject of fair-use rights and DRM. Competent legal authorities most definitely disagree, and no court has yet ruled. Stripping DRM (from legally acquired content, for personal use only) may be entirely legal, or may be against the law. Nobody knows! And nobody will know, until the legal system clarifies it for us. Period.

As for the assertion that "Breaking DRM is generally preparatory to violating the author's copyright , as in "sharing" an ebook with family and friends.", well... We already know that argument is a loser, legally speaking.

First, you've been told -- repeatedly! Over and over and over... -- that there are plenty of entirely legitimate reasons for breaking DRM. For example, as a result of technological upgrades, I'm now on my 3rd (or is it 4th?) eBook reader. None of my prior devices has shared a DRM system with my current device! If I hadn't stripped the DRM from those ebooks that had it, I'd have lost access to all of those purchases. In fact, I DID lose access to all my purchases when I moved from device #1 (a Rocket ebook reader) to device #2 (a Sony). No recourse, either, because Rocket/RCA/<whoever-the-corporate-parent-was> left the business and turned off the DRM servers. Never again!

Second, we know from the VCR case (??Sony v. Universal??? -- I don't remember the proper reference) that the existence of legitimate uses is enough to satisfy the courts. Your assumption that a non-legitimate use is "generally preparatory to violating the author's copyright" is a complete non-issue -- it wouldn't matter even if you were correct. And that's well-settled law with plenty of precedent, unlike the other issues discussed above. Right or wrong, the correctness of your assumption is irrelevant from a legal perspective -- the existence of even a single legitimate use is enough to satisfy the courts, no matter how many illegitimate uses there are.

Finally, we come to the argument about whether the above assertion is actually correct. On one side, we have the evidence presented by stonetools, which consists of (I'll be polite here) repetitively repeated redundant assertion -- not even an anecdote or two in sight. On the other side, we have anecdote from a few dozen mobileread denizens (including me). Not the most convincing evidence in the world, but it's much MUCH stronger than mere assertion.

So I'm pretty sure that your assumption is wrong, although my evidence is only slightly better than yours (all anecdotal, but I've got more anecdotes on my side!). I conclude that your a simply assuming that your assertion is true. (Remember that old saying about the word "assume": it makes an 'ass' of 'U' and 'me'.) After all, if you had any actual evidence, you'd trot it out to make your argument stronger. Wouldn't you?

Xenophon
(who is NOT a lawyer, but has taken a graduate seminar on the subject being discussed)