[Kali Yuga]

Originally Posted by Shaggy

Yes, counterfeiting and piracy are completely different from theft and stolen goods. But, counterfeiting is also completely different from copyright infringement.

Egads. Split hairs much?

It's a metaphor, by the way, and it is meant to illustrate that "the sale is not legitimate" in a manner that is a better fit than a comparison to reselling stolen property. I am not suggesting that Amazon sold stolen property or counterfeit books. So to be yet even more explicit:

The e-books in question were not legitimately published.

The motives, intent and/or good faith of the buyer does not convert it a legitimate transaction.

The motives, intent and/or good faith of the publisher does not convert it a legitimate transaction.

The motives, intent and/or good faith of the retailer does not convert it a legitimate transaction.

The fact that an otherwise legitimate method (e.g. valid credit card transaction) was used does not convert it a legitimate transaction.

Nothing about the transaction could possibly convert this into a legitimate sale.

Is that metaphor-free enough for you?

Originally Posted by Shaggy

If Amazon is selling eBooks, the electronic files that they are selling are legally owned by Amazon and they can legally transfer ownership of those files via a sales transaction.

Incorrect. Amazon did not actually have the legal right to create the file in the first place, let alone distribute it. Generating an e-book file for sale when you do not have the publisher's permission does not fall under "fair use." Unless a book is in the public domain in the country where the transaction takes place, only the actual holder of the publishing rights in the US can grant Amazon the ability to create and distribute the e-book file in question.

Also, keep in mind that the proceeds of the Orwell sales were not going to the legitimate US publisher, but to a company that did not hold the proper US publishing rights. How exactly does a "legit" transaction generate revenue for the wrong publisher? Hmmmm.....

Originally Posted by Shaggy

What Amazon does not have is copyright authorization to distribute, but that does not make the files themselves illegal or void the transaction.

Then what would? Some Magic DRM Pixie Dust, perhaps?

Let's say I run an independent e-book store that sells books without any DRM. One day, Tolkien books become available for legal e-book distribution in the US. However, HarperCollins demands that all of the e-books they publish must have DRM, and explicitly denies me the right to sell and/or otherwise distribute any Tolkien e-books. If I make a non-DRM version and sell it in my store without their permission anyway, then I do "not have copyright authorization to distribute," and this in turn makes my efforts, and therefore "my files," illegal to create and distribute. The entire transaction is illegitimate, including creating the file, distributing the file, and disbursing payments.

Again whether this should void the transaction in such a way that I, as the e-book store and distributor, can revoke it and delete the files, is a separate issue. But it's clear that the sales were not legitimate.

Originally Posted by Shaggy

That just means that the copyright holder and Amazon have a dispute between them over the authorization to distribute the material. Amazon has infringed on the copyright holder's right of distribution, but that does not make the product itself illegal.

Oh? Then what exactly WOULD constitute an illegal e-book or an illegal transaction?

And if this is a "legit" sale, why couldn't I set up my own non-DRM e-book store, make my own non-DRM e-books regardless of copyrights and publishing rights, and if someone tries to shut me down I can declare that "these are legitimate transactions" and on that basis, attempt to continue the sales?

Mobilereference did not have the legal right to publish Orwell's books in the US. Amazon therefore did not have the legal right to create the e-book files or to distribute them. Therefore, the purchases were not legitimate. And if you attempt to claim the sale was legitimate, then this in turn cannot be contained and would essentially license all sorts of copyright violations.