The 'ebooks are not transferable' issue...

[thibaulthalpern]

Originally Posted by Shaggy

I thought the statements about "fair portion" had to do with re-distribution of the material for review, reporting, parody... etc.

As far as making a personal use copy, I don't think there is any specification that it may only be a small portion.

It's not about re-distribution as far as I can tell. It's about reproduction. It's not all entirely hard and clear though but see:

http://fairuse.stanford.edu/Copyrigh...pter9/9-a.html

[Liviu_5]

Originally Posted by Shaggy

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

As far as I know the rulings cover very narrow cd software which whatever the EULA terms, it's still a physical object that can be handed over; sure you have to agree to erase it, bla, bla, but the crucial part is that a physical object changes hands so to speak, not a virtual e one.

I still do not see the answer to my questions to people claiming ebooks are "sold"

1. Where is the used market for ebooks?

2. Can you legally give away your ebook to someone else without permission from the publisher/seller? And in the drm case how do you achieve that within current law? Assuming you agree to delete it, bla, bla...and still I would like an answer to question 2.

Note that Baen who is one of the msot liberals e-publishers out there *allows* you to share this and that, eplicitly; does Baen or Amazon for that matter *allow* you *explicitly* to resell you print books bought there and do you need their permissions?

To me this is one of the crucial issues that will determine the future of ebooks - until a *legal* mechanism to resell, share, archive forever and so on that is acceptable to "buyers" will be in place, or the prices will be low enough to consider ebooks "throwaway" items, I just do not see the market maturing.

[Elfwreck]

Originally Posted by Liviu_5

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

A US court has decided that "sale" means "you keep it," and a "license" means "you have to return it to the owner." It doesn't matter what the terms on the contract are--a sale is defined by the terms of use, not by what label the original owner put on the transfer of goods.

The "right to give away/resell" is not part of the terms of the sale; it's an inherent right that goes with any purchase. The seller can't legally restrict that right.

If you aren't expected to wipe it from your hard drive & return it to the copyright owner on request, it's a sale, not a license. This is also supported by the many websites that call ebooks "sales" not "licenses." The TOS may say "license," but the checkout cart calls them purchases, and groups ebooks in with physical books and other physical property.

One obvious "resell" option for ebooks would be to download them to a flash drive or memory card, and sell that with "the original" books on it.

[Liviu_5]

Originally Posted by Elfwreck

One obvious "resell" option for ebooks would be to download them to a flash drive or memory card, and sell that with "the original" books on it.

And how would the buyer read the book if it's drm'ed?
And we are back at the physical medium issue anyway.

When people on the dark side argue that ebooks should be priced close to print because content is all that matters, this thread should be used to remind them that a physical book comes not only with the content but with inherent rights that simply do not exist in ebooks and those rights are worth a lot for me and again I bet lots of others. Those rights, not only the paper and the package

And again that's why I am making an issue of this "license" vs "sell"
We can quibble about terms - sale vs license - and their legal definitions, but whatever their status when you pay money for an ebook you get considerable less rights-wise than for a paper book and that's the crux of the issue, not semantics...

[Shaggy]

Originally Posted by Liviu_5

And again that's why I am making an issue of this "license" vs "sell"
We can quibble about terms - sale vs license - and their legal definitions, but whatever their status when you pay money for an ebook you get considerable less rights-wise than for a paper book and that's the crux of the issue, not semantics...

Just because the company selling you the ebook says that you have less rights, doesn't make it true. The crux of the issue is that when they say you have considerably less rights, is that really enforceable.

[Shaggy]

Originally Posted by HarryT

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.

It's Ebay's choice not to participate in that market. There still is a legal market for selling used PC/Mac software. It happens all the time, and US courts have said that it is allowed.

[Robotech_Master]

Originally Posted by phenomshel

And what about this scenario? I want a book in ebook format. The book is not available in electronic format, anywhere. So, I buy a physical copy of the book, scan it (destroying it in the process), OCR it, and make my own ebook. I bought one copy of the book, I now own one copy of the book. Legal? Probably not. But the author and publisher got their money for one copy of the book, which is what I now own, albeit in a different format than the one I purchased.

Though I am not a lawyer, as I understand it the Supreme Court decision in RIAA vs. Diamond Multimedia held that consumers have the right to "space shift" their purchases to different media. Though the specific example to which it applies is ripping CDs to MP3s, that shouldn't be different in principle to "ripping" paper books to e-books.

[Liviu_5]

Originally Posted by Shaggy

Just because the company selling you the ebook says that you have less rights, doesn't make it true. The crux of the issue is that when they say you have considerably less rights, is that really enforceable.

Not allowing reselling is definitely enforceable in two ways.

First is drm and making stripping it illegal - see Amazon vs MobileRead controversy for a recent well knwon example here

Now of course people can and do strip drm on a wide scale and in all kinds of e-products which is the moral thing to do imho - march against darkness whenever possible and practical and drm is insidious darkness - but of course we have people even here shouting "criminals" on top of their e-voice the moment drm stripping is even whispered

Second is the lack of availability of places to resell your ebooks - no known "used" legal ebooks store that I know of, tons of used print bookstores, some like Amazon, Alibris, eBay where you can set your used p-book "store" up in seconds

Not allowing giving the ebook away or sharing it with friends - this one is of course unenforceable as long as you strip drm, but see the point above and the chorus if you talk about it.

While again I can talk freely about giving my copy of *** pbook to my friend Larry and receiving a copy of **** pbook from my friend Robert

So for print books none of the negative things above apply, so this is what I mean that ebooks come with much less rights than print books, irrespective of my personal beliefs in the morality of stripping drm - which again to my mind is not only moral but imperatively so as a fight against darkness and obscurantism.

Now to be fair, ebooks come with some capabilities that are worth something, for example instant availability is one that's very important for me, not taking physical space is another one relatively important, ability to carry many such on a device, change font, also search sometimes is useful...

The fundamental question is how much do those capabilities are worth to you against the clear limitations above. The whole "sale vs license" as well "content in ebooks is the same as in print books" obscure all these issues which actually are crucial in determining utility...

[Shaggy]

Originally Posted by Liviu_5

Not allowing reselling is definitely enforceable in two ways.

First is drm and making stripping it illegal

Yes, but what is the legality of using DRM to restrict the right of first sale? That has never been tested for eBooks. With software, which works a little differently, courts have ruled that you can resell the protected software along with the key to access it.

The practical aspects of "is there a market" or "how exactly do you give someone else your DRM key", are separate issues from the legal aspect of "does the law allow companies to demand that you must forfeit your right of first sale". If the law says that first sale applies, then everything else can be worked around.

see Amazon vs MobileRead controversy for a recent well knwon example here

That's a bad example, since what Amazon did to MobileRead was an abuse of the DMCA takedown provision.

Second is the lack of availability of places to resell your ebooks

That's because there are currently questions about the legality. If it gets tested in courts, and they rule that first sale applies, then places to resell ebooks will appear. Even if there's not a large commercial market for a "used ebook store", you can still sell it to a friend, etc.

[Elfwreck]

Originally Posted by Liviu_5

And how would the buyer read the book if it's drm'ed?

Which is one of the many issues with DRM: it restricts, and attempts to remove, a buyer's legal right to resell what she's bought.

And we are back at the physical medium issue anyway.

Some physical objects are only sell-able in conjunction with other physical objects. You can't sell gasoline without a container. It's untested whether you could (legally) arrange to transfer digital content in such a way that it's removed from the original location as it appears in the new one.

When people on the dark side argue that ebooks should be priced close to print because content is all that matters, this thread should be used to remind them that a physical book comes not only with the content but with inherent rights that simply do not exist in ebooks and those rights are worth a lot for me and again I bet lots of others. Those rights, not only the paper and the package

Those rights exist for ebooks as well. They are inherent in the act of purchasing. The company that sells you a product, has no legal right to remove them, nor even to impede them.

A computer seller might put a fingerprint lock on a laptop, but he can't prevent you from disabling that lock and selling the laptop to someone else. If books were sold with retina scanners, it would (at this point) be entirely legal to disable the scanner in order to sell it.

Disabling DRM for the purpose of resale is (IMHO) equally legal. The legal complexity comes in with the issue of "copying," because it may be impossible to remove DRM on the original file; most programs work by creating an unlocked copy. (OTOH, some PDF unlockers work by making a backup locked version, and editing the "main" file. So it's presumably at least possible to edit the original to remove DRM.)

And again that's why I am making an issue of this "license" vs "sell"

The courts have ruled that if you're not expected to return it, it's a sale--with all the rights that accompany sales, regardless of what the seller wanted. And most ebook sites don't say they "license" the books--they say "book is only authorized to be used by purchaser," or similar wording.

And that's not a limitation a seller can require. Once you've bought it (whatever "it" is), you're under no obligation to use it as the seller requested. They have the right to refuse to sell to you in the future if they don't like your usage habits, but there's no breach of contract if the terms of the contract were not legally enforceable to begin with.

[Harmon]

Originally Posted by Steve Jordan

If the issue here is whether or not it is okay to ignore and violate the contract you agreed to when purchasing the books... well, legally and morally, no. When you agree to abide by a selling contract, that's it. There's no going back and unilaterally changing your mind, and claiming the contract is no longer valid just because your situation (or just your state of mind) has changed.

I don't see the issue as being whether or not it is okay to ignore and violate the contract.

Before you can get to that kind of issue, you have to ask: what does the contract really mean? Believe it or not, a contract can often mean something other than what it appears to say just from reading it.

For example, what a writer legally owns under the copyright act does not include the right to restrict fair use. So a contract can say "the buyer agrees that he does not have the right to fair use of this book" and it means nothing. The right to "fair use" cannot be eliminated by a contract. It is clearly against public policy.

In addition, if the contract in its terms is called a "license," that does not mean that it is, as a legal fact, a license. The contract that Amazon uses is probable a contract of sale, not a license. And if it is a contract of sale, then the reader/buyer has the right to resell the ebook.

So I don't see that the readers/buyers are ignoring or violating the contract. Rather, it is more likely to be true that the sellers are ignoring or violating the contract, because (1) they are trying to do something by contract that they have no legal right to do, and (2) they are claiming that the contract gives them rights which legally, they have conveyed to the buyer.

Originally Posted by Steve Jordan

If you even suspected that the contract would not be satisfactory to you in the future (or, for that matter, right now), you simply should have exercised your right to not buy the e-book. After all, it's not a necessity, it's entertainment... no one is forcing you to buy it.

You have got things exactly backwards. It is the seller who does not have a right to sell a book while trying to restrict the use of the book beyond the provisions of the copyright law. The copyright law gives the seller the right NOT to sell his book, but it does not give him the right to require the reader to give up his own rights under the copyright law in order to buy the book.

The copyright law is itself a contract between the sellers and buyers of ebooks, and overrides the provisions of any other contract that is contrary to its terms.

(And I also disagree that ebooks are entertainment. That is certainly a part of what many ebooks are, or at least try to be, but at their heart, books of any kind are about freedom of speech and freedom of thought. There's a reason the Nazis burned books.)

Originally Posted by Steve Jordan

But don't forget the other important fact: An e-book isn't just a physical book that is "invisible" until you turn your reader on. It is, in fact, an electronic file, and therefore subject to different rules than physical media. The rules governing their use and trade should not necessarily be the same as physical media, so you should not necessarily expect to be able to buy, trade and resell them like a book. New media demand new rules.

There is only one problem with the use and trade of electronic files. The problem is with the copying of electronic files. It lies in the ability to, in essence, manufacture innumerable exact duplicates of electronic files. If it were not for this, there would be no reason at all to treat electronic files any differently than any other thing, physical or otherwise, that is bought and sold every day.

The copyright laws allow buyers to sell or give away the copy of the book or ebook that they buy. The copyright laws preclude the reader to make additional copies to buy or give away, unless the copyright holder agrees.

The problem we have could be entirely resolved if we could figure out some way to permit copying of electronic files in a manner which complies with the fair use rights of the reader without violating the economic rights of the seller.

Originally Posted by Steve Jordan

This is obviously a good example of why e-book contracts are overdue for review and rewriting, to make them work better for the majority of people (of whom many are likely to find themselves in the situation you are in) and sellers (who, by and large, refuse to consider the needs and realities of consumers).

I don't think that the problem can be adequately dealt with at the level of the contracts, until the copyright laws are reformed. Readers need a Copyright Bill of Rights of some kind, which would establish the parameters of fair use which cannot be breached by the sellers.

For example, such a Bill of Rights would establish that a reader has a right (1) to copy a file to any device he owns, and (2) to modify the file in any fashion that makes it possible for him to do so, unless the seller provides that service. It would establish that a reader has a right to sell or give away a file in any fashion, unless the seller has provided a service, at a reasonable price, to broker the transaction.

Once the Readers' Bill of Rights has been established, then would be the time to rewrite the contracts. Until then, the sellers will continue to do their best to overreach, until they figure out that the people who pass on their "used" ebooks to others are the best advertisement there is for a writer.

[Harmon]

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.

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.

[DaleDe]

Originally Posted by Harmon

And BTW, you can sell that iPod with all those mp3s you bought on it. No problem.

Yes, but the minute you register and sync your iPod they will all get erased unless you also have copies of them. And there is no easy way to get them off the device in a usable form.

[Moejoe]

Originally Posted by DaleDe

Yes, but the minute you register and sync your iPod they will all get erased unless you also have copies of them. And there is no easy way to get them off the device in a usable form.

I thought there were plenty of apps available to do just that, copy the songs off the ipod to your hard drive without having to use itunes. I seem to remember using them in the past on my 5.5g ipod. Not had the need to yet on my iTouch, but I'm sure there must be some about.

EDIT: Took a couple of minutes and found countless hits for both Windows and Mac (didn't check Linux) to copy music from the iTouch to the computer HD without having to re-register and have music wiped out by iTunes.

[Liviu_5]

Originally Posted by DaleDe

Yes, but the minute you register and sync your iPod they will all get erased unless you also have copies of them. And there is no easy way to get them off the device in a usable form.

What??? Google and find out how to in 5 seconds.