Re-selling DRMed ebooks: Legal or not?

[Harmon]

Originally Posted by HarryT

I agree that it could be done, but I think personally that it's far more likely that someone is simply going to make an illegal copy and give that away, don't you? That's just human nature.

What do you mean by "illegal copy?"

Seriously. Let's have some definition of this term.

If something is "illegal," that means that doing it violates the criminal law (exposing the violator to a term of imprisonment or some lesser penalty, like "community service") or violation of the civil law (exposing the violator to a fine or lesser penalty, but not imprisonment.)

So, do you think that it is against the criminal law to simply make a copy of an undRMed ebook and give it to someone else? Specify the law - cite the statue and section of the law to which you are referring. I don't think you can.

Or perhaps you think that making a copy of an ebook and giving it away is a violation of some civil statue, resulting in a fine? Again, specify the law - give us a citation that we can look at and see if it means what you think it means - namely, that a person can be fined for making a single copy of an unDRMed ebook and giving it to someone else.

Or perhaps you think that it is a violation of some statute to remove DRM from an ebook, copy it, and give the copy away. Or copy a DRMed ebook, remove the DRM from the copy, and give the copy away. If you do, what section of the law are you referring to - not which general law, but which specific section of the law?

You might be able to give us a citation on this, but when you do, I believe I will be able to show that the law to which you refer only covers commercial copying, not a single act of copying where money is not involved.

Finally, are you using the term "illegal" to refer to a breach of contract? If you are, then you are misusing the term. It is NOT "illegal" to breach a contract. Contracts are breached all the time. It might be financially dangerous under some circumstances, but it's not "illegal," and it is confusing the issue to refer to such things as being against the law.

(Actually, I agree with your primary point, which is that the way that an ebook is likely to be transferred will almost inevitably involve a copy being made. I just think that you need to stop calling such copying "illegal" unless you can support that characterization by something more than your say-so.)

[HarryT]

Harmon,

I am not a lawyer, and I'm not going to start quoting "chapter and verse", but I don't need to be a lawyer to know that, at least in the UK, to give someone else a copy of a commercial eBook that is under copyright protection is a violation of civil copyright law, in exactly the same way that buying a CD and then giving a copy of that CD to someone else would be.

[wodin]

Originally Posted by Shaggy

Maybe we should send a suggestion to Microsoft to build something like that into the next version of Windows. I'd recommend calling the command "move" instead of "copy".

Yes, along with some method to require you to "move" and not "copy". The objective here is to only have one instance of the file in your possession, unless you have paid for more than one.

Perhaps in your unbounded brilliance you can think of another way of doing it, but in my utter ignorance, the only way I can see is to build it into the library management software. When Microsoft gets into the ereader library management software business, then perhaps a letter to them might be in order. Why don't you take that little project on?

[Elfwreck]

Originally Posted by Harmon

What do you mean by "illegal copy?"

So, do you think that it is against the criminal law to simply make a copy of an undRMed ebook and give it to someone else? Specify the law - cite the statue and section of the law to which you are referring. I don't think you can.

To be fair, the law would be different depending on location. HarryT and I live in different countries, and are ruled by different copyright laws. And HarryT has no reason, other than an avocation for ebooks, for knowing anything about USAn copyright laws (or any other USAn laws), which are the ones that Amazon is under; there's certainly no reason he should be able to quote sections of them at people arguing on a forum.

Or perhaps you think that making a copy of an ebook and giving it away is a violation of some civil statue, resulting in a fine? Again, specify the law - give us a citation

I can't quote criminal law or statute that indicates it's illegal for someone to let the air out of my car's tires at night, but I'm pretty sure it's illegal. Can't quote the law that says they're not allowed to give my children knives to play with, either, but again... pretty sure there's a law somewhere.

Most of our legal understanding is not based on knowing exact details of the laws. While I disagree with some of HarryT's interpretations of copyright laws, I don't believe he's mistaken about the details of them.

that we can look at and see if it means what you think it means - namely, that a person can be fined for making a single copy of an unDRMed ebook and giving it to someone else.

Copyright law is a MESS. A hideous, tangled mish-mash amalgam of author's rights, encouragement of creativity, and corporate greed; most aspects of the law were written before photocopies were possible, much less digital copying, and the laws are poorly adapted to modern circumstances.

It's often impossible for a layman to determine if a particular act is against the law. (Which is, in the US, grounds for challenging the law itself, but nobody has the resources to do that just yet.) But that trouble doesn't mean it's impossible to note what is *probably* or *possibly* illegal, and decide to "play it safe" by following the broadest interpretation of the law, rather than the technical and more limited interpretation.

[balok]

Originally Posted by HarryT

Look at the terms and conditions of the site where you bought the books. I believe you'll find that on most - probably all - sites, the books are specifically stated to be "non transferrable" and those are the terms that you agreed to when you bought the books. You cannot, therefore, give them to anybody else.

Terms can be abusive and therefore deemed unwritten. This is what the law in my jurisdiction says about such clauses:

An abusive clause in a consumer contract of adhesion is null, or the obligation arising from it may be reduced. An abusive clause is a clause which is excessively and unreasonably detrimental to the consumer or the adhering party and is therefore not in good faith; in particular, a clause which so departs from the fundamental obligations arising from the rules normally governing the contract that it changes the nature of the contract is an abusive clause. (Art. 1437, Quebec Civil Code)

Violating a contract does not necessarily amount to "breaking the law." Contracts can be themselves illegal.

[wodin]

Originally Posted by balok

the rules normally governing the contract that it changes the nature of the contract is an abusive clause. (Art. 1437, Quebec Civil Code)

Well lets see, I think one of the rules normalcy governing the sale of a book is if I pay for it it's mine.

[HarryT]

Originally Posted by wodin

Well lets see, I think one of the rules normalcy governing the sale of a book is if I pay for it it's mine.

Your "ownership" of a paper book is actually rather limited in terms of what you're allowed to do with it. You can re-sell it or give it away, yes, but you can't make copies of it and sell those; you can't read it aloud and charge people admission to come and listen to you do so. You own the physical object - the paper, ink, and glue - but you have no rights whatsoever to the "contents" of the book as intellectual property.

[Harmon]

Originally Posted by HarryT

Harmon,

I am not a lawyer, and I'm not going to start quoting "chapter and verse", but I don't need to be a lawyer to know that, at least in the UK, to give someone else a copy of a commercial eBook that is under copyright protection is a violation of civil copyright law, in exactly the same way that buying a CD and then giving a copy of that CD to someone else would be.

When you say that behavior is "illegal," you should take care to be right.

If a person does something for which the government can prosecute him, and send him to jail or fine him, or both, then what he's doing is "illegal" (if he's convicted.)

If the person does something for which another person - not the government - may sue to collect monetary damages, what he has done is not "illegal."

Do you go around telling people that it is "illegal" not to pay their rent? Or that it is "illegal" to take sick leave from work when they are not sick? Or "illegal" to refuse to pay a contractor for not doing a job you hired him to do? Of course not. Those things might be wrong, or immoral, or subject to negotiation, but they do not involve legality or illegality.

Violating "civil copyright law" may or may not be doing something "illegal." It depends on what the law actually says, and you have tacitly admitted that you don't actually know what the law says. Until you do, you should not go around calling copying "illegal."

[Harmon]

Originally Posted by HarryT

Your "ownership" of a paper book is actually rather limited in terms of what you're allowed to do with it. You can re-sell it or give it away, yes, but you can't make copies of it and sell those; you can't read it aloud and charge people admission to come and listen to you do so. You own the physical object - the paper, ink, and glue - but you have no rights whatsoever to the "contents" of the book as intellectual property.

You are overstating the matter.

You may quote portions of the book in an article you write yourself. You can photocopy portions of a book if you are a teacher and using it in the classroom. You can, using a description of a character in the book, paint a picture of the character and sell it, or copies of it. [edit: on reflection, I might be wrong about this one.] You can make a movie in which a character reads a page or two of the book out loud. The interesting thing is that you can do these things even if you do not own, and NEVER owned, the book itself.

As the owner of the physical book, you can cut it up, and frame separate pages, and sell them. You can probably photocopy a page, frame it, and sell multiple copies of it, although I have to say that this presents an interesting legal question that could go the other way.

So actually, the owner of a book, or even just the user of a book, has a degree of right to the intellectual content.

[Harmon]

Originally Posted by Elfwreck

To be fair, the law would be different depending on location. HarryT and I live in different countries, and are ruled by different copyright laws. And HarryT has no reason, other than an avocation for ebooks, for knowing anything about USAn copyright laws (or any other USAn laws), which are the ones that Amazon is under; there's certainly no reason he should be able to quote sections of them at people arguing on a forum.

To the contrary, that's all the more reason that he should identify what laws he is talking about when he claims that actions like copying ebook files are "illegal." Illegal where? Illegal under what circumstances? Illegal under what authority?

Harry and others seem to operate under the assumption that any claimed restriction by any publisher or seller of ebooks has the force and effect of the criminal law. Well, that simply ain't so, certainly in the US, and probably anywhere in the Western world. Shall we owners of ebooks docilely concede to these people that they can take our money and tell us what to do with what we've paid for? Shall we be our own prison guards? Harry seems to be volunteering for the job. I know better, at least in the US, because I've read the law.

I can't quote criminal law or statute that indicates it's illegal for someone to let the air out of my car's tires at night, but I'm pretty sure it's illegal. Can't quote the law that says they're not allowed to give my children knives to play with, either, but again... pretty sure there's a law somewhere.

Those aren't the same kind of thing that copyright law tends to be. Copyright law is grounded in statutory enactments intended to establish, govern or regulate copyright itself. Statutory law is easy to point to, even for a layman.

Most of our legal understanding is not based on knowing exact details of the laws. While I disagree with some of HarryT's interpretations of copyright laws, I don't believe he's mistaken about the details of them.

He doesn't know the details, and can't make any interpretations, because he doesn't know what the law actually says. He only knows what he thinks the law would be if he bothered to look it up. It might well be that in England, the copyright laws are so draconian that merely copying an ebook is illegal. I don't know that it isn't, but I do know that such is NOT the case in the US, and that laws tend to bleed across jurisdictional bounds, particularly within the legal systems based, historically, on English jurisprudence. So the likelihood is against what he asserts. But if he's right, it should be pretty easy for him to establish it based on something other than his say-so.

Copyright law is a MESS. A hideous, tangled mish-mash amalgam of author's rights, encouragement of creativity, and corporate greed; most aspects of the law were written before photocopies were possible, much less digital copying, and the laws are poorly adapted to modern circumstances.

Totally agree.

It's often impossible for a layman to determine if a particular act is against the law. (Which is, in the US, grounds for challenging the law itself, but nobody has the resources to do that just yet.) But that trouble doesn't mean it's impossible to note what is *probably* or *possibly* illegal, and decide to "play it safe" by following the broadest interpretation of the law, rather than the technical and more limited interpretation.

But that's not Harry's position. He's an absolutist on the subject, and seems to me to conflate moral positions with legal ones. He seems to think that because it is (arguably) immoral to violate a contract it is illegal to violate a contract.

As for "playing it safe," why then, at least the "broad interpretation" should be reasonable. It should be based on the actual language of the statute, not the assertions of an interested adverse party. The latter is not "playing it safe." It's giving up.

[Harmon]

Originally Posted by wodin

Yes, along with some method to require you to "move" and not "copy". The objective here is to only have one instance of the file in your possession, unless you have paid for more than one.

Perhaps in your unbounded brilliance you can think of another way of doing it, but in my utter ignorance, the only way I can see is to build it into the library management software. When Microsoft gets into the ereader library management software business, then perhaps a letter to them might be in order. Why don't you take that little project on?

I have a Mac, which has a "move" command for moving files to the Trash. I rather suspect, though, that the original file is just made invisible, until the Trash is emptied, at which time it is erased - and even then, has a residual existence somewhere in the hard drive.

But I think you are mistaken to focus the hypothetical Microsoft Move Command on ebooks. It seems to me that such a command would be a natural reaction to increased demand from content providers and digital app creators to protect intellectual property. I can foresee that we might get to the point where files "refuse" to be "copied," but allow themselves to be "moved."

[Harmon]

Originally Posted by rrburton

There is a difference between what pirates and hackers "can" do and what is actually right which we are discussing here.

It seems that it comes down this - electronic versions are inherently different than paper versions. You can hand your paper version of something to another person. To lend someone your electronic version you must break the copyright rules to do so.

Look at it this way. It is perfectly legal to make a backup copy of a DVD or CD, right? Now, suppose you want to lend the DVD to a friend. Do you have to lend him the original, keeping the backup? Or can you lend him the backup, keeping the original? Is there any actual difference between the two?

I'd say there's no difference, so it doesn't matter which one you lend him, so long as he actually means to return it.

That being the case, how is it any different to lend him an electronic copy, which is, after all, only your perfectly legal backup copy of your ebook?

It seems to me that if you are really "lending" the book (as opposed to permanently transferring a copy to someone else) it is "fair use" to make a copy in order to do the lending.

I'm talking, of course, about a situation where the person who "borrows" the ebook deletes it after reading. (We won't get into the question of whether it's legal to make the copy and give it away. I think it is legal, although I also think it is a breach of contract.)

Even if your intent is to copy the work to a medium then immediately delete it from it's previous location you have broken the rules by having in your possession momentarily 2 copies when you had only paid for one copy in the first place. The only way around that is to initially obtain the electronic version onto a storage medium and lend your original storage medium which defeats the flexibility of the electronic medium partially.

If your intent is to wind up with only one copy, and one copy is what you end up with, then the temporary existence of two copies in the course of making the transfer is inherent in the medium. That being the case, if the law contemplates that it is legal to transfer a copy to someone else, then the normal and customary mode of transfer will also be legal. You can depend on it - the law always accommodates the normal way of doing something if the end result is legal. If it didn't, things would grind to a halt.

[HarryT]

Originally Posted by Harmon

Look at it this way. It is perfectly legal to make a backup copy of a DVD or CD, right?

Depends where you live. It's not legal in the UK, for example. I'm not entirely sure that backing up DVDs is legal in the US - ISTR that one of the big software companies (might have been the makers of "RealPlayer") was forced to withdraw from sale a DVD "backup" program when the courts ruled that it was a tool for infringing copyight, and that DVD owners did not have an inherent "right" to create backup copies of their DVDs.

[Harmon]

Originally Posted by HarryT

Depends where you live. It's not legal in the UK, for example. I'm not entirely sure that backing up DVDs is legal in the US - ISTR that one of the big software companies (might have been the makers of "RealPlayer") was forced to withdraw from sale a DVD "backup" program when the courts ruled that it was a tool for infringing copyight, and that DVD owners did not have an inherent "right" to create backup copies of their DVDs.

Whattayasay we look at some actual "law."

http://www.jenkins.eu/copyright-(sta...rt-1-index.asp

Copyright, Design and Patents Act 1988
1988 CHAPTER 48

The Copyright, Designs and Patents Act 1988 (and amending legislation) is reproduced under the terms of Crown Copyright Policy Guidance issued by HMSO.

An Act to restate the law of copyright, with amendments; to make fresh provision as to the rights of performers and others in performances; to confer a design right in original designs; to amend the Registered Designs Act 1949; to make provision with respect to patent agents and trade mark agents; to confer patents and designs jurisdiction on certain county courts; to amend the law of patents; to make provision with respect to devices designed to circumvent copy-protection of works in electronic form; to make fresh provision penalising the fraudulent reception of transmissions; to make the fraudulent application or use of a trade mark an offence; to make provision for the benefit of the Hospital for Sick Children, Great Ormond Street, London; to enable financial assistance to be given to certain international bodies; and for connected purposes.

15th November 1988

BE IT ENACTED by the Queen's most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows:-
...

CHAPTER III.

ACTS PERMITTED IN RELATION TO COPYRIGHT WORKS.
...

Computer programs: lawful users

Section 50A: Back up copies

50A.-(1) It is not an infringement of copyright for a lawful user of a copy of a computer program to make any back up copy of it which it is necessary for him to have for the purposes of his lawful use.

(2) For the purposes of this section and sections 50B, 50BA and 50C a person is a lawful user of a computer program if (whether under a licence to do any acts restricted by the copyright in the program or otherwise), he has a right to use the program.

(3) Where an act is permitted under this section, it is irrelevant whether or not there exists any term or condition in an agreement which purports to prohibit or restrict the act (such terms being, by virtue of section 296A, void).
...


Now, I do not pretend to be conversant with UK law. So I can't state categorically what the state of UK law is at the present time.

The law I've cited above deals with computer programs, not DVDs. But the underlying copyright concepts for both are the same, & I'm pretty confident that UK law runs parallel to US law, although it might deviate in details.

Here's how US law runs, broadly speaking:

1. it is NOT illegal for a private person to make a copy of digital media which he owns himself, even if the program is DRMed.

2. it IS illegal to sell or distribute a program which defeats DRM.

3. a private person who copies, for personal use, digital media which he owns, has done nothing illegal, and this remains true even if he defeats DRM to do so.

4. the person who gives him or sells him the program HAS done something illegal.

Now, can you see the distinctions here? Owners have the right to copy digital media. But it is illegal to sell/give tools to defeat DRM to those owners. The illegality of the latter does not impact the legality of the former, although it has a practical effect.

Do DVD owners have an inherent "right" to create backups? No - not in the sense that such a right can be asserted to defeat the statutory framework involving DRM of the Digital Millennium Copyright Act. But at the same time, making backup copies does not violate copyright law.

And please pay particular attention to the following section of the UK law I've cited:

(3) Where an act is permitted under this section, it is irrelevant whether or not there exists any term or condition in an agreement which purports to prohibit or restrict the act (such terms being, by virtue of section 296A, void).

I was really pleased to see this, because there doesn't seem to be a statutory counterpart in US law, although the legal principle is the same here. Now, this section is not directly on point to some of the discussions we've been having about these sorts of things. But any lawyer reading this language will get the flavor of the situation. What this section strongly suggests, in the ebook context, is that just because some ebook seller in England tries to condition the purchase of an ebook on the buyer "agreeing" that the ebook cannot be copied or transferred, the condition is void if the statute protects such a right.

In the US context, the same legal principle means that since I, as the purchaser of copyrighted material, have the right to "fair use" of the material, the seller cannot restrict that right by contract or in any other fashion.

This is why copyright holders wanted the DMCA. If that Act had not been passed, sellers of copyrighted material would have been unable to enforce DRM by claiming the existence of a contract in which the buyer had given up his right to defeat the DRM and copy the file.

Bottom line: no ebook owner need fear the law if he makes a backup copy of the ebook, and lends either the original or the copy to a friend, so long as it really is a loan, and the friend either returns or deletes the copy after taking a reasonable period to read it.

[HarryT]

Originally Posted by Harmon

Whattayasay we look at some actual "law."

Excellent suggestion .

The law I've cited above deals with computer programs, not DVDs. But the underlying copyright concepts for both are the same, & I'm pretty confident that UK law runs parallel to US law, although it might deviate in details.

The reason I'm pretty sure that backing up, ripping, etc, one's own CDs is currently illegal in the UK is the fact that the government has issued a consultation document, which has the support of the phonographic industry, to discuss changing the law to make it permissible. At present it's one of those things which is legally not permitted, but which nobody is ever prosecuted for.

Here's how US law runs, broadly speaking:

1. it is NOT illegal for a private person to make a copy of digital media which he owns himself, even if the program is DRMed.

2. it IS illegal to sell or distribute a program which defeats DRM.

3. a private person who copies, for personal use, digital media which he owns, has done nothing illegal, and this remains true even if he defeats DRM to do so.

Your point 3 above, seems to be contradicted by the DMCA which says:

Section 103 (17 U.S.C Sec. 1201(a)(1)):

No person shall circumvent a technological measure that effectively controls access to a work protected under this title.

and provides the definition:

to “circumvent a technological measure” means to descramble a scrambled work, to decrypt an encrypted work, or otherwise to avoid, bypass, remove, deactivate, or impair a technological measure, without the authority of the copyright owner.

Now it seems clear to me that if a private person, even for personal use, removes DRM, that person is "circumventing a technological measure", and hence is in violation of the above section 103 of the DMCA, are they not? If this is not so, please could you explain why not, since the above seems pretty "clear cut".