Quote:
Originally Posted by stonetools
I understand that ebooks are licensed. Indeed one of my pet peeves is that thanks to " convenient " one click purchasing, people are misled into thinking that they are " buying" an ebook when what they are buying is access to a file . If it were up to me one click buying would be banned and you would have to read in banner headline font the following before you buy:
THIS IS NOT A PURCHASE OF TiTlLE. This is a purchase of a license to access a file. Do you understand this and do you accept it?
This would cut down a lot on the misunderstanding and the bull%%%.
I understand why the booksellers and the publishers opted for speed and ease over full disclosure. But land sakes a mercy, they have unleashed an unending tsunami of nonsense on these internets.
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Stonetools:
Your statement that "this is not a purchase of title" is certainly what many in the publishing industry would like us to believe. However,
it remains unclear whether that's actually correct as a matter of law (U.S. law, in this case). Remember that contract terms that are contrary to law are automatically null and void. And
we don't really know what the law is in this particular area.
First sale doctrine is rather odd, from a layman's point of view. There's plenty of legal precedent suggesting that the presence of a EULA that states that a transaction is a purchase of a license is insufficient to transform a purchase of title into a purchase of license -- even though the EULA clearly states that it's a purchase of license.
Factors considered by the courts in previous cases include:
- Use of a "Buy now" or "Purchase now" button (rather than a "Buy license now" button, for example)
- Presence or absence of conditions under which the customer must return the licensed product.
- Presence or absence of a time limit for the license.
- Whether a "reasonable person" would be likely to consider the transaction a "sale" or a "license".
- And, for all I know, the phase of the moon or the flip of a coin...
In other words, the certainty you express in the above quote runs far,
far in advance of the state of the law in the U.S. Various courts have ruled on both sides of the issue, so precedent varies. Eminent legal scholars argue both sides, so we can't just go with a scholarly consensus either.
We won't really know for sure unless and until the Supremes hand down a ruling. Until then, it's all conjectural. Really.
Do please try to remember that the law in this area remains thoroughly unsettled.
Xenophon
...Who is not a lawyer, but did TA a graduate seminar on the subject a few years back and took copious notes while eminent legal scholars explained their viewpoints, complete with compelling arguments why the previous eminent legal scholar was full of %$#%$#.
As always, this is not legal advice on which you may place reliance. Should you need legal advice, go hire yourself a suitable expert; it'll be expensive!