Quote:
Originally Posted by asjogren
"A publisher with, say, North American rights, has paid for those rights. If a publisher selling out of, say, India with India-only rights were to sell in the US, he'd essentially be selling something he didn't own."
Yet, I can travel and buy a book where the publisher has no rights to sell in my home country.
Why is it OK when I travel physically, and not via the Internet? The Industry is trying to force fit an archaic model. And in doing so, making customers angry and foregoing sales. It is STUPID.
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This is easy to explain, although not so easy to justify. The issue comes about through the combination of the legal "locus" of the sale (I think I have that term right) with a concept known in the US as the "first-sale doctrine" (many other countries have the same idea, usually with other names).
The "locus" of the sale is the place where the sale is legally considered to take place. For in-person retail purchases, this is easy to determine -- it's where you are when you hand over the cash (or credit card, or whatever) and walk away from the register with product in hand. For mail-order purchases, this is a bit more difficult. Does the sale take place at your home? At the headquarters of the company? The consensus answer appears to be that the sale takes place at the seller's loading dock.
When we consider purchases over the internet of digital content, it's even more difficult. In addition to the possibilities listed above for mail-order, we now add to the list:
- The location of the particular server that sends you the actual bits of the eBook.
- The location(s) of the various other servers that could have sent you the eBook. Think of the Akamai content delivery network for an example of this possible complicating factor.
- The location(s) of the various servers and network hardware through which the bits pass on their way to you
- Your current physical location.
- Your place of legal residence
- The location of the corporate gateway from which your traffic appears to originate (because you connect in with a VPN from some arbitrary other location)
There are, of course, many other possibilities.
I'm not aware of specific legislation regarding this question. However, the current consensus standard appears to be that your current physical location (to the extent to which that location can be determined, consider the VPN case, for example) is considered to be the legal locus of the sale. One could certainly argue that this is neither a correct nor ideal choice (and I'd probably agree!), but it seems to be the current standard assumption.
Thus, although you can use the net to purchase digital content from vendors worldwide, the legal location of the sale is your physical location at the time of purchase.
With physical goods,* however, the First Sale Doctrine (FSD, hereafter) comes into play. The idea is that the contract between the creator of the item and the retailer of the item cannot restrict people who were never party to that contract. So (in the case of books), an author or his/her agent can sell geographically restricted rights (US-only, for example) to a publisher (straight-forward contract law). The publisher can, in turn, pass that "US-only" restriction on to a distributor and retailer (again via straight-forward contract law). In theory, the retailer could require you to sign a contract in order to purchase the book — in which case you would also be restricted to US-only sales. But in the real world, retail sales do not involve signing a contract! Without an explicit contract, the FSD says that the contractual restriction evaporates. So the retail purchaser gets the book free of the US-sales-only restriction. The retail purchaser can then take the book anywhere in the world, resell to anyone anywhere, etc. When it comes to physical goods, the FSD is your friend.
Similarly, the locus of sale for physical goods via "mail order" is the loading dock (even when the "mail" is via the internet!), the bookseller can then ship the physical book to you regardless of your physical location. The sale took place before shipment, so the geographical restriction was satisfied, and your location no longer matters under the contract.
Quote:
Originally Posted by asjogren
If the industry still wants to partition the marketplace, then LANGUAGE is the most appropriate delineation. And even then, I think it is a mistake.
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I agree with you. So do lots of other folks, including those at many publishing houses. And many are trying to work deals that involve non-exclusive world-wide digital rights. It even works, sometimes, for new books. But for older books, the situation is a real mess.
Let's consider the situation of a publisher (call them T) who wishes to sell, say, the eBook version of last decade's
Giant Best Seller world-wide. It's probably got a decent-sized market in bits. Perhaps not so much as todays
GBS2, but enough to spend some time and money on. So let's see where they stand.
T purchased geographically-restricted rights back then; everyone did. But they were smart, and purchased digital rights as well. GREAT -- the digital edition is at least possible! But other publishers purchased similar rights in their respective regions. In order to legally sell
GBS outside their region, T will have to acquire rights in the rest of the world. But... who can T purchase those rights from? Does T even know which publishers own which rights in various countries? Can T work a deal with them? To sell world-wide, T needs to get everybody who currently owns geo-restricted digital rights to agree. And that means negotiations and contracts. Are T's digital rights worth more or less than the other guys'? Who should pay whom? All this involves lawyers and billable hours. Ouch!
Consider the author/agent who would dearly love to have
GBS available for sale as an eBook to everyone in the world, regardless of location. They sold US rights (say) to T. And European rights to P. And Indian rights to someone else. And so on, for all the various regions around the world, because it was a great big seller. Now T comes by wanting to purchase world-wide digital rights. The author/agent
can't sell those rights to T, because various subsets of the rights
have already been sold elsewhere. At best, they can give T a list of all the publishers to contact for negotiations.
Now multiply that mess by all the books that still have enough residual value that a digital edition is worth someone's time and energy to produce. It's a mess of extraordinary magnitude... and there's no single party who can fix it!
The best we can hope for is for some country to legally define the locus of sale as the location of the server, or the location of the corporate headquarters, or something. And even
that has problems, because the first thing they'll want is to collect sales taxes on all those luscious transactions.
Xenophon
(As always, I am moderately knowledgeable on this topic, but I AM NOT A LAWYER and THIS IS NOT LEGAL ADVICE! If you require legal advice on which you may place reliance, consult an actual lawyer, NOT ME)
*The FSD may well apply to digital goods after you've purchased them. But that doesn't help us for purposes of this discussion -- it only changes where you could legally re-sell the eBook, not where a retailer can sell it to you.