Secondhand ebooks?

[eskimo49]

I have one e-book for sale by Amazon and on several other sites. As far as I am aware I am the publisher, not Amazon. However I had to agree to their terms and conditions before they would agree to put my e-book on sale. This is standard practice.

As part of my copyright notice, I also have an 'honesty condition which states:-

'This ebook is licensed for your personal enjoyment only. This ebook may not be re-sold or given away to other people. If you would like to share this book with another person, please purchase an additional copy for each recipient. If you’re reading this book and did not purchase it, or it was not purchased for your use only, then please purchase your own copy or make a donation on the author's website.'

This wording was mainly suggested by Smashwords. It also states that the e-book my not be sold or given away to anyone.

I also feel that the cost of buying an e-book is often outrageously high, I don't believe they should be any more than 30%-50% less than the price of a paper book. I have no intention of ever charging a lot for any e-book I write, and hope many others will agree to this. Given this (while I personally have no great objection to my books being given away, the fact that the price is (in my opinion reasonably low), means it is really being sold at a price you would pay in a second hand shop for a used paper copy.

[Catlady]

Originally Posted by HarryT

Given the army of lawyers they employ, I'm absolutely certain that they have a perfect right to do so. You're not suggesting that Amazon's licence agreement is illegal, are you? I'm pretty sure that they know more about these things than you or I do.

I'm suggesting that they can claim anything they want, but that doesn't make it legally binding on the end user.

[Elfwreck]

Originally Posted by HarryT

How could it not be correct? They should know whether they're selling you a book or a licence, don't you think?

The legal cases that established the first-sale doctrine also involved contracts stating something like "this is a license, not a sale." The courts ruled that if the exchange of product-for-money acted like a sale, it was a sale, regardless of the terminology used.

Some of the key aspects of "sale" vs "license" were "unlimited time" and "no expectation of return." It was ruled that you can't say, "we've licensed this to you forever, and you can only use it in the following ways, but we don't ever expect to get it back and you don't have to make any more payments."

Amazon does claim to license ebooks, not sell them, but whether that's actually what's happening legally hasn't been established.

[meeera]

Originally Posted by Elfwreck

Some of the key aspects of "sale" vs "license" were "unlimited time" and "no expectation of return." It was ruled that you can't say, "we've licensed this to you forever, and you can only use it in the following ways, but we don't ever expect to get it back and you don't have to make any more payments."

Amazon does claim to license ebooks, not sell them, but whether that's actually what's happening legally hasn't been established.

Yep. And if they want to legally insist that it's not a sale, they might wanna take a long hard look at that "BUY NOW" button. Under that, I see "How Buying Works", where Amazon refers to the transaction as a "Purchase". Nowhere is there an asterisk on those words, no little footnotes to say "well actually not a buy or a purchase at all, HTH.".

In the Managing Your Kindle section, again purchases are referred to as "purchases". In the Gifts section, as "gifts". You have to burrow deep into fine-print T&Cs before there is any mention of licensing. Under Australian consumer law, you can't do this. If your large-print/first-contact page/advertisement/whatever says "BUY", but you're not selling, you screwed up.

[HarryT]

Originally Posted by meeera

Yep. And if they want to legally insist that it's not a sale, they might wanna take a long hard look at that "BUY NOW" button. Under that, I see "How Buying Works", where Amazon refers to the transaction as a "Purchase". Nowhere is there an asterisk on those words, no little footnotes to say "well actually not a buy or a purchase at all, HTH.".

You are buying. You're buying a licence.

[Soldim]

Originally Posted by HarryT

You are buying. You're buying a licence.

You're buying what Amazon calls a licence, whether or not it's a licence in the legal sense can only be determined by a court. Based on existing jurisprudence I have strong doubts -- which doesn't prove a thing

I doubt anyone would get sued, but Amazon have illustrated their willingness to close people's accounts who violates their terms of service, and re-selling an eBook is most assuredly a violation of Amazon's terms of service, regardless of the law. A private seller such as Amazon is perfectly at liberty to impose terms of service which are more restrictive than the law.

There I have to admit I am not familiar enough with US law. I know in Europe a corporation would have a hard time arguing it has the right to refuse to do business with a private customer if the customer uses products purchased in an strictly legal manner. Generally that is not an issue, since customer tend to move on. When corporations have large market shares, that gets more tricky and there's some customer protection. In the US law tends to lean a bit more towards corporate interests (to use an understatement), so it could very well be different.

[HarryT]

Originally Posted by Soldim

There I have to admit I am not familiar enough with US law. I know in Europe a corporation would have a hard time arguing it has the right to refuse to do business with a private customer if the customer uses products purchased in an strictly legal manner. Generally that is not an issue, since customer tend to move on. When corporations have large market shares, that gets more tricky and there's some customer protection. In the US law tends to lean a bit more towards corporate interests (to use an understatement), so it could very well be different.

Amazon close people's accounts, for example, if they believe that they are buying and returning an undue number of items. People who do that aren't breaking the law, but Amazon is saying "we don't want to do any more business with you in the future". Certainly in the UK, any business can do that (eg pubs commonly ban people whom they regard as "trouble makers"). I would hazard a guess that re-selling your Amazon bought books could be classed in a similar kind of way; Amazon certainly have a track record of saying to people "we don't want you as a customer" if they "break the rules".

[latepaul]

Originally Posted by Catlady

The publisher is the "Content Provider." What right does Amazon have to impose its conditions on the buyer's use of the material from the Content Provider?

The same right that it has to distribute the material in the first place - it's licensed to do so.

The material is copyrighted. Only the copyright owner can ultimatley grant licenses to distribute copies of their work. But the terms of that license is open to negotiation. Amazon can obviously say to its Content Providers, "These are our T&Cs. If you wish to sell through us you must grant us the license to impose these conditions on the end customers".

[Soldim]

Originally Posted by HarryT

Amazon close people's accounts, for example, if they believe that they are buying and returning an undue number of items. People who do that aren't breaking the law, but Amazon is saying "we don't want to do any more business with you in the future". Certainly in the UK, any business can do that (eg pubs commonly ban people whom they regard as "trouble makers"). I would hazard a guess that re-selling your Amazon bought books could be classed in a similar kind of way; Amazon certainly have a track record of saying to people "we don't want you as a customer" if they "break the rules".

I certainly have heard many complaints (justified or unjustified) about Amazon closing accounts. If they start closing accounts of people doing what's legally allowed with items bought, they risk might not having too many customers left after a while.

[Thasaidon]

English consumer law gives the courts to decide whether the clauses in a seller's standard terms and conditions are "fair". If the court decides a clause is "unfair" then the clause cannot be enforced by the seller.

This has happened on a number of occasions but most sellers under UK law can choose not to sell to a specific customer. The ones who must deal with every customer are very rare exceptions.

Originally Posted by latepaul

But the terms of that license is open to negotiation. Amazon can obviously say to its Content Providers, "These are our T&Cs. If you wish to sell through us you must grant us the license to impose these conditions on the end customers".

[HarryT]

Originally Posted by Thasaidon

English consumer law gives the courts to decide whether the clauses in a seller's standard terms and conditions are "fair". If the court decides a clause is "unfair" then the clause cannot be enforced by the seller.

This has happened on a number of occasions but most sellers under UK law can choose not to sell to a specific customer. The ones who must deal with every customer are very rare exceptions.

Absolutely - that's exactly the point that I'm making. It may certainly be the case that Amazon can't enforce the "you can't resell your eBooks" clause in their T&Cs, but that certainly doesn't mean that they won't be within their rights to decline to do further business with someone who chooses to do so.

[GreenMonkey]

Originally Posted by HarryT

You are buying. You're buying a licence.

Apply that to cars. You're not buying a car, you're buying a license to use a car. And here's all the restrictions...

Apply it to paperback books. You're not buying a book, you're buying a license to read this book. And here's all the restrictions...

You could claim anything is a license. But if you pay for it upfront (not regularly), it doesn't expire...it's not really a license.

Kind of the like the old statement that about ducks...if it looks like a duck, quacks like a duck...

Which is what Elfwreck was saying...

Originally Posted by Elfwreck

The legal cases that established the first-sale doctrine also involved contracts stating something like "this is a license, not a sale." The courts ruled that if the exchange of product-for-money acted like a sale, it was a sale, regardless of the terminology used..

[speakingtohe]

Originally Posted by GreenMonkey

Apply that to cars. You're not buying a car, you're buying a license to use a car. And here's all the restrictions...

Apply it to paperback books. You're not buying a book, you're buying a license to read this book. And here's all the restrictions...

You could claim anything is a license. But if you pay for it upfront (not regularly), it doesn't expire...it's not really a license.

Kind of the like the old statement that about ducks...if it looks like a duck, quacks like a duck...

Which is what Elfwreck was saying...

Just curious about how something has to expire to be a license. I looked up afew definitions and cannot find in commonly used dictionaries, wikipedia etc. that a license has to expire, or even that it usually expires


Helen

[Elfwreck]

Originally Posted by speakingtohe

Just curious about how something has to expire to be a license. I looked up afew definitions and cannot find in commonly used dictionaries, wikipedia etc. that a license has to expire, or even that it usually expires
Helen

Vernor V Autodesk drew on US v Wise "which directly addressed the classification of sales and licenses for the purposes of first sale with respect to film prints, the court found that the crucial factor was whether the transaction gave rise to a right of perpetual possession in the transferee. If the transferee was entitled to keep the copy acquired from the copyright holder, it was a sale. If the transferee was required to return the copy, it was not a sale."

It's not a part of the definition of a "license" in dictionaries; it's part of the body of legal doctrines relevant to determining what a license is. And it's not definitive--"you keep it forever" isn't the single factor that decides if an exchange was a sale or a license. It's just the factor that decides when other details are lacking, or when the "license" argument is not strongly supported.

There are perpetual licenses... with ongoing payment requirements, or other continued interaction between buyer and seller. But calling a sale a "license" doesn't make it legally true. (I'm not saying that ebooks aren't licensed; just saying that publishers' wishes aren't what would make that happen. Publishers tried to limit the resale of pbooks, too; that's how we got the first sale doctrine: they printed books that said "this book must not be resold for less than $1" and insisted their copyrights had been violated when they were sold used.)

Amazon (and other bookstores) using words like "Buy This Ebook" will not work in their favor when they claim to be selling licenses, not books. Especially for those sites that sell print and ebooks with the same software and same buttons. Saying "but we said some of those purchases are licenses... in another spot on the site, in a 6-pt light grey font, buried in the middle of 4500 words of EULA" is not a good foundation for a court case. There is *nothing* in the buying process that indicates the ebooks are sold under different conditions than the pbooks.

[GreenMonkey]

Try this for reading on a pretty similiar sort of thing in the courts. About the reselling of CDs labeled "not for resale".

http://www.npr.org/blogs/therecord/2...e-oh-yes-it-is