Re-selling DRMed ebooks: Legal or not?

[Shaggy]

Originally Posted by HarryT

The original poster, however, is in Germany, which may well interpret the law differently .

Absolutely. All I can opinion on is what US law might say about a similar situation. I have no knowledge or experience with German law. I started out in this thread by saying "In the US" and "US copyright", but got lazy as the thread progressed.

[Jellby]

Originally Posted by Shaggy

That goes back to the whole "license vs sale" question, which US courts have already answered.

I'm not American, and I'm not a lawyer (thanks goodness), but I believe you can still find software licenses where you actually buy some (time-limited or not) access to online material, and not the material itself.

In the University I have access to online scientific journals, and I can freely (I assume the University pays a subscription) download PDFs of the articles that interest me, but I don't think I can sell the PDFs once I've read them, even if I promise not to download them again.

Now, I don't say the situation with ebooks is the same, but I'm sure it's not so clear-cut.

[=X=]

Originally Posted by HarryT

But you do still have a copy - the copy on the bookstore's servers, which you can download again. I honestly do not think that "choosing not to download it again" has any relevence to the fact that it is your copy of the file, therefore in giving away or selling another copy of the book you are making a copy, and therefore violating copyright.

No this is not true. Files on the server are not "OUR" copy. Those files are kept on the server only for the customer's convince. They are also not guaranteed. They are there for our convince and can be removed or disabled for any given reason. BoB even implements a download limit on it's files.
The customer has absolutely no control over the files stored on the eBook store they cannot even remove a book from the library.

Also a person can also keep track of the sale date and show that the file has not been downloaded since then.

=X=

[Shaggy]

Originally Posted by Jellby

I'm not American, and I'm not a lawyer (thanks goodness), but I believe you can still find software licenses where you actually buy some (time-limited or not) access to online material, and not the material itself.

As long as it's made clear that there is a time-limit, then it would count as a license. That's not how eBooks are currently being sold though.

What US courts have said is that if there is no expectation by the customer that the product will need to be returned, then it is a sale. I assume a time limited access would count has having to "return" the eBook, which would make it a license.

So, if you went to Fictionwise/Amazon/etc and they advertised they were selling you access to an eBook for 6 months, after which the DRM would expire, then you likely won't be able to resell the used eBook. That would be a significant change from the model they are currently selling eBooks under though.

[Elfwreck]

Originally Posted by HarryT

I honestly do not think that "choosing not to download it again" has any relevence to the fact that it is your copy of the file, therefore in giving away or selling another copy of the book you are making a copy, and therefore violating copyright.

If you have the keys to a store you used to work at, but don't use them to break in to steal, are you guilty of theft? (Not a perfect analogy, I know. If you have passcode to the restricted stacks of a university library at a university you no longer attend, are you guilty of crime because now someone else has your form job taking inventory? It's not your fault the library doesn't have a way for you to change the passcode.)

The RIAA wants to claim that having the opportunity for copyright infringement is the same as committing the crime, because it's too hard to prove actual infringement. But most of us would prefer crimes & lawsuits to be limited to actions, not potentialities.

If ebook servers aren't capable of transferring ownership of downloads (or even shutting them off after the download has been sold), that's a flaw in their security. Taking advantage of it could be illegal (or against EULA, which is a different category), but noting that it exists doesn't obligate anyone to act differently because of it.

[Jellby]

Originally Posted by Shaggy

What US courts have said is that if there is no expectation by the customer that the product will need to be returned, then it is a sale. I assume a time limited access would count has having to "return" the eBook, which would make it a license.

So, if you went to Fictionwise/Amazon/etc and they advertised they were selling you access to an eBook for 6 months, after which the DRM would expire, then you likely won't be able to resell the used eBook. That would be a significant change from the model they are currently selling eBooks under though.

Note that in the online journals model I mentioned you don't have to "return" anything and all that may expire is your access to download new material, but whatever you have already downloaded won't stop working.

What if Fictionwise/Amazon/etc said that when you "buy" an ebook it is available in your account to download as many times as you wish, but for an unspecified time? They could say that access is guaranteed for 2 years, but beyond that you may have to "renew" the ebook (even if it's for a symbolic price or free, or the renewal could be automatic). The DRM in the files you download does not expire, but at some point the ebooks might not be available for download anymore. Would that count as "licensing"?

I feel that's the current model, although it's probably in the small type of the conditions.

[BuddyBoy]

Originally Posted by =X=

No this is not true. Files on the server are not "OUR" copy. Those files are kept on the server only for the customer's convince. They are also not guaranteed. They are there for our convince and can be removed or disabled for any given reason.

As those of us who had purchased pre-Kindle eBooks at Amazon, or Overdrive eBooks at Fictionwise can well attest.

Originally Posted by Jellby

I'm not a lawyer (thanks goodness)

Hurumph!

[Shaggy]

Originally Posted by Jellby

Note that in the online journals model I mentioned you don't have to "return" anything and all that may expire is your access to download new material, but whatever you have already downloaded won't stop working.

What if Fictionwise/Amazon/etc said that when you "buy" an ebook it is available in your account to download as many times as you wish, but for an unspecified time? They could say that access is guaranteed for 2 years, but beyond that you may have to "renew" the ebook (even if it's for a symbolic price or free, or the renewal could be automatic). The DRM in the files you download does not expire, but at some point the ebooks might not be available for download anymore. Would that count as "licensing"?

I feel that's the current model, although it's probably in the small type of the conditions.

That's different. I don't think having the access expire, but keeping the content, would count as a license. Since you are keeping what you paid for, I think the US would count that as a sale, and you should have the ability to resell the item. In order for it to be considered a "license" by the court, I think the eBook itself would need to be sold as expiring.

The ability to re-download is a service that is offered, but separate from the sale of the eBook itself. Whether or not the service expires doesn't effect the ownership of the eBook.

[mgmueller]

Amazon's reply on my request "re-selling DRMed eBooks: Legal or not?":

"According to the Terms of Trade, it is illegal to resell the eBooks. However, you may resell the Reader devices after deleting the eBooks on them."

I'll ask for further details about the various scenarious suggested in this thread...

[tompe]

Originally Posted by mgmueller

Amazon's reply on my request "re-selling DRMed eBooks: Legal or not?":

"According to the Terms of Trade, it is illegal to resell the eBooks. However, you may resell the Reader devices after deleting the eBooks on them."

Note that this only says that the terms claim that it is illegal. It does not say that it actually is illegal.

[zerospinboson]

Originally Posted by mgmueller

Amazon's reply on my request "re-selling DRMed eBooks: Legal or not?":

"According to the Terms of Trade, it is illegal to resell the eBooks. However, you may resell the Reader devices after deleting the eBooks on them."

I'll ask for further details about the various scenarious suggested in this thread...

Yes, and then you may access the ebooks by buying another of our devices to read them on, as you will be unable to read them on any other device.
Of course they're saying this. They want you to stay as a customer. It will still have to hold up in court. (And I doubt they'll be able to make the argument that "book licenses" are something customers are supposed to accept as an inevitable, necessary part of progress).
There's a little bit too much vested interest talking here.

[Elfwreck]

Originally Posted by mgmueller

Amazon's reply on my request "re-selling DRMed eBooks: Legal or not?":

"According to the Terms of Trade, it is illegal to resell the eBooks. However, you may resell the Reader devices after deleting the eBooks on them."

I'll ask for further details about the various scenarious suggested in this thread...

Ask them what law it violates to resell the books you've purchased--ask if it's a federal law, or related to the state that governs Amazon.com.

(Erm. If you care to hassle them. I'm with the crowd that thinks you won't get any useful answers, just notes that it's against the terms of What Kind of Customer Amazon Insists You Must Be, and it'll get bumped around to a few different customer service reps, who'll spout different paragraphs excerpted from their business plans, before they stop replying entirely. I don't believe that at any point you'll hear from anyone with a legal degree.)

[mgmueller]

It has been raised before in this thread, but to be more specific:

1.) Sharing an account:
I've got 4 PIDs in my (Mobipocket) account (for the other formats, usually it's similar).
Let's assume, I wouldn't even sell my readers, but just a "portion" of my account.
Meaning: I delete 1 of those 4 PIDs and hand that spot to another guy/girl.
So the account actually could be circulated between up to 4 parties at a time.
Each of those 4 parties would be able to access my library and read the eBooks on their respective readers.

Of course, distributor's argument will be, I'm the only one being allowed to have 4 units, but it's not allowed to spread over 4 legal persons.

My answer would be: Those 4 units could be owned by me, my parents and my wife. Why not 4 friends or colleagues? Or 4 total strangers?

So: Is it 4 units, exclusively bound to me or is it just 4 units?

2.) Lending my eBooks to 3rd party
Let's assume, I'd sell my reader(s) without any content.
But I'd grant the purchaser(s) access to my eBooks.
This probably would have to be for free (?), as I don't own the copyrights.
But still, it would be of significant benefit for those buyers, being able to access > 400 eBooks for free.
Of course, this might motivate them, to pay a higher price for my reader.
Again, I compare this to "dead tree" books. I can't lend them for a fee, but of course I can lend them for free to whomever I please.
The analogy to "dead tree" would be: I sell a bookshelf to you. It's expensive. But I'll lend you whatever book(s) you want from my library, so you can fill your bookshelf.
Of course, the analogy has one flaw: If I lend out "dead tree", I'd get them back at some time, whereas I couldn't control that with DRMed eBooks. (The purchaser always can keep a copy.) But then again: is this my fault? Did I invent this kind of DRM?

[rrburton]

Lending Ebooks. Why not, libraries are doing it. I wonder if they pay the publisher for each loaning of an ebook or if they just acquire a copy as they do paper ones and loan them out the same way.

And what is preventing me from having my own private library of dead tree books and renting them out. I believe that there are services such as this online at this moment (http://www.bookswim.com/ for example), just like netflix but for books. So one should also be allowed to privately rent out an ebook as well, no?

[Jill74]

For me, I would say it is not legal.