Quote:
Originally Posted by HarryT
This is terrible advice. You absolutely CANNOT give away the books with an eBook reader, any more than you can give away the music you've bought from iTunes if you sell your iPod. In both cases, "ownership" of them is not transferrable.
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Amazon could put a clause in its user agreement or whatever they call the damn thing that says "purchaser cannot transfer the ebook to any other person, even if he sells the device the ebook is on" and it would STILL not be a violation of the contract if the purchaser did just that.
The reason is that if Amazon
sells the book, it belongs to the purchaser. He can do whatever he wants to with it, as long as he doesn't violate the copyright laws.
But wait! You say that Amazon does not "sell" the book. It merely "licenses" the book. How do you know that? Maybe you read a provision in the user agreement that says "this transaction is a license, not a sale."
Well, a transaction is not a "license" just because it calls itself a "license." And it can be a "sale" even if it says it's not a "sale."
Whether a transaction is a "license" or a "sale" is a legal conclusion, to be determined by all the facts and circumstances of the transaction. And if the facts and circumstances show the transaction to be a sale, then any provision of the contract which are inconsistent with it being a sale will not be enforced. It is a fundamental aspect of a "sale" that it transfers ownership. Ownership includes the right to sell or give away the thing that is owned.
What you seem to be doing is assuming that these "contracts" that the ebook sellers are foisting on buyers will be blindly enforced, in each and every provision, without regard to what the economic reality of the transaction is.
It isn't the case. Just think for a minute. Suppose you buy a Kindle from Amazon. In the contract, it says that Amazon is just licensing you the Kindle, and you can't sell it to anyone else. But the contract also says that if the Kindle breaks, it's your problem, and they won't give you a new one, and won't give you your money back, except during the first 90 days of use, and only if the damage is not due to negligence.
Now, is that a license or a sale? Would anyone really think that it's not a sale? The courts would take one look at the situation, see that the economic burden of ownership is on you, and tell Amazon that it's a sale.
The economic reality of buying an ebook is that you own it. There is nothing at all in the transaction that looks like a licensing of the ebook. You don't have to give it back. There is no expiring term of use. The cost is similar to that of physical books. There are no renewal provisions.
Compare it to the movie you rent over the internet from Apple, which is much more likely to be seen as a licensing transaction. You get X number of hours to view it, once you've started. If you want more time to view it, you pay more. The cost is a fraction of the cost of a DVD. At the end of the period, it becomes unusable.
Everything in the ebook situation points to a sale. And if you own it, you can sell it yourself.
And BTW, you can sell that iPod with all those mp3s you bought on it. No problem.