The 'ebooks are not transferable' issue...

[Harmon]

Originally Posted by Jim Lester

(quoting the Amazon contract) Upon your payment of the applicable fees set by Amazon, Amazon grants you the non-exclusive right to keep a permanent copy of the applicable Digital Content and to view, use, and display such Digital Content an unlimited number of times, solely on the Device or as authorized by Amazon as part of the Service and solely for your personal, non-commercial use. Digital Content will be deemed licensed to you by Amazon under this Agreement unless otherwise expressly provided by Amazon.

Jim quoted that in support of his claim that all you get when you buy an ebook from Amazon is a "license." Why? Well, because Amazon says so, that's why!

Let's parse that out:

"Upon your payment of the applicable fees set by Amazon,"

Well, you have to pay. No question about that. Except when the book is free. Y'know, something Amazon has copied from the public domain. That they didn't pay for. Funny about that, isn't it?

"Amazon grants you the non-exclusive right"

Meaning that they will "grant" the same right to anyone else who will pay. Fine. No skin off your nose.

"to keep a permanent copy of the applicable Digital Content and to view, use, and display such Digital Content an unlimited number of times,"

Well, of course. You bought it. You can read it as much as you want.

"solely on the Device or as authorized by Amazon as part of the Service"

Baloney. You can move it around as much as you want, between whatever reading devices you own. It doesn't violate any law. It doesn't violate copyright. It doesn't damage Amazon in any way.

"and solely for your personal, non-commercial use."

True, but only half-true. What's missing is that you can also do whatever you want with the book so long as it is within the terms of "fair use" as defined by federal law.

"Digital Content will be deemed licensed to you by Amazon"

Amazon can "deem" whatever they like. So can you. You can "deem" that you've bought the book. Whether it's a legitimate, enforceable license, or a sale, is a legal question, not a question of what Amazon "deems." For all practical purposes, when you buy an ebook from Amazon, it is the equivalent of buying a physical book. You can tell them I "deem" it so.

"under this Agreement unless otherwise expressly provided by Amazon."

Meaningless, unless they give you some right you don't already have, which they won't.

Nate the great is right smack dab on. Amazon can call it a license - heck, they can call it a cow - but it's a sale.

[pilotbob]

Originally Posted by Jim Lester

First Sale doctrine applies for something you purchase, however as been pointed out previously in this thread, you never purchase an eBook, you license it.

I posted the dets before here, perhaps in another thread. The courts have upheld that you can sell software that in the "terms" say you are licensing. So, you are transferring the license.

Of course, for ebooks this will all need to be challenged in court. And, I am sure at some point it will be. Same I assume will happen with MP3s.

BOb

[Liviu_5]

Originally Posted by Harmon

Nate the great is right smack dab on. Amazon can call it a license - heck, they can call it a cow - but it's a sale.

Like others on the forum being there, done that with license vs sale, but I am still confused by what you perceive the difference to be between a license and a sale.

For me:

sale means first and first foremost right to resale, give away, get rid without any questions/strings attached

license means you have to ask permission for anything you do with the stuff in question outside of the narrow terms you signed on for

In particular "sale" of *x* usually means there is a legal market for used *x* as in used cars, clothes, houses, books, dvd's, cd's, games, magazines, even the odd newspaper of collectible interest...

Where is the secondary (legal) market for ebooks? How do you even give your ebook away legally to someone?

If it smells and acts like a license, well you can call it anything you want, it's still a license

[HarryT]

Originally Posted by Harmon

For example, if you give away or sell your reader, of course you can leave the books on it - unless you plan to go back to the seller & download another copy for yourself. After all, you wouldn't sell a physical book, then go down to Borders and just walk off with another copy from their shelves.

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.

[Shaggy]

Originally Posted by Sydney's Mom

Doesn't the first sale rule cover transfer of ebooks? Meaning I can resell, so long as I transfer all of my rights, without violating copyright.

It should, except that DRM/DMCA prevents it.

[Shaggy]

Originally Posted by Jim Lester

First Sale doctrine applies for something you purchase, however as been pointed out previously in this thread, you never purchase an eBook, you license it. Read the terms of sales closely.

US courts have already ruled on this with regards to software vendors trying to do the same thing. The courts have said that first sale still applies to software that has "only been licensed".

[Shaggy]

Originally Posted by Liviu_5

sale means first and first foremost right to resale, give away, get rid without any questions/strings attached

license means you have to ask permission for anything you do with the stuff in question outside of the narrow terms you signed on for

US courts have already ruled that is not true. A "license" can not take away your rights.

[Shaggy]

Originally Posted by HarryT

In both cases, "ownership" of them is not transferrable.

According to who?

[HarryT]

According to the terms that you acknowledge your acceptance of when you buy them. Besides which, it's a clear-cut case of copyright infringement, in that the "originals" are still available for you to download - and are almost without doubt still stored on the hard disk of your computer - after you've sold or given away your book reader or iPod.

[Shaggy]

Originally Posted by HarryT

According to the terms that you acknowledge your acceptance of when you buy them.

That doesn't mean those terms are legally binding, which is what we're discussing.

Besides which, it's a clear-cut case of copyright infringement, in that the "originals" are still available for you to download

How is that infringement? There's a possibility of infringement there, but infringement does not exist unless you actually download a second copy after you have transferred ownership. Just because you can do something, doesn't mean that you have broken the law.

Besides, if this becomes the norm, I assume the sellers would make a way for you to inform them that you've transferred ownership and they can remove the download links from your account.

and are almost without doubt still stored on the hard disk of your computer

Why do you say that? It sounds like you're assuming that everyone will behave like criminals. I guess in your world it's "guilty until proven innocent". I can also scan a pBook before I sell it, that doesn't mean everyone selling books to a used bookstore are criminals.

[HarryT]

Originally Posted by Shaggy

Why do you say that? It sounds like you're assuming that everyone will behave like criminals. I guess in your world it's "guilty until proven innocent". I can also scan a pBook before I sell it, that doesn't mean everyone selling books to a used bookstore are criminals.

Please do not make unwarranted assumptions about what I am saying. I simply mean that, once you have downloaded a book to your hard disk, it will remain there. "Deleting" it does not remove the data from your disk - it merely takes away the directory entry. You actually have to work pretty hard to physically "delete" it. If you give it away while the data for it remains on your hard disk, you have created an illegal copy of it, and are in breach of copyright.

I'm not at all sure that your argument that "It's OK if you don't download it again" holds up. The fact remains that it is "your" book, regardless of whether you choose to download it. It's like saying that, if you scan a book and then give that scan away, it's OK as long as you never take the paper book down from your bookshelf again. That's a very weak argument, IMHO.

[ficbot]

Also, what about a case like I mentioned in my original post, where the eBookwise does not have a way for the books to be downloaded to a computer and even if you got them on a memory card, the DRM prevents them from being used on another eBookwise? They are literally only readable on the one device you used to buy them. So if I sell that device (which I did) and leave the books on there, there is NO WAY I kept a copy...

[Shaggy]

Originally Posted by HarryT

You actually have to work pretty hard to physically "delete" it.

Then do so.

If you give it away while the data for it remains on your hard disk, you have created an illegal copy of it, and are in breach of copyright.

"If". That doesn't mean they will. Just because there's the possibility that someone can cheat the system doesn't mean that every occurance of transfer of ownership is "a clear-cut case of copyright infringement".

[HarryT]

Originally Posted by Shaggy

"If". That doesn't mean they will. Just because there's the possibility that someone can cheat the system doesn't mean that every occurance of transfer of ownership is "a clear-cut case of copyright infringement".

Perhaps not every one, but I think personally that it is reasonable to assume that the overwhelming majority will be. That is why sites like eBay prohibit the resale of "used" PC/Mac software, but permit the resale of console games, where the game doesn't get installed onto a hard disk.

[tompe]

Originally Posted by HarryT

Please do not make unwarranted assumptions about what I am saying. I simply mean that, once you have downloaded a book to your hard disk, it will remain there. "Deleting" it does not remove the data from your disk - it merely takes away the directory entry. You actually have to work pretty hard to physically "delete" it. If you give it away while the data for it remains on your hard disk, you have created an illegal copy of it, and are in breach of copyright.

This is not how legal reasoning works.