can there be a market for used digital content?

[Elfwreck]

Originally Posted by riemann42

To return to the OPs question. Can there be a used market for eBooks? I repeat an emphatic No. Any attempt to do so would encourage more DRM.

However, you make a very valid point about Law right now. My suggestion is that we change this law.

This is not a small, incidental special-law-about-digital-materials. This is one of the foundations of property law: if you own it, you can (re)sell it.

Removing that from digital content would be a nightmare.

Does it include digital music purchased on CDs? Game programs on CDs, which have to be installed in a computer to be used? Can the discs no longer be resold? If a person rips their disc to MP3 to play on an iPod, are they not permitted to sell the disc later?

How will you tell the difference between a person who has a computer & has ripped the disc, vs one who's only played it on a CD player?

How will you deal with ebooks whose authors/publishers say, "A bit of sharing is okay; don't go overboard?" What law will categorize what kind of sharing that includes?

Why *can't* it be shared with an entire dorm? A single boom box can play music the whole dorm can hear. (Assuming a big box & a small dorm.) Why should text be less legally share-able than music?

What about software--does it become illegal to sell a computer with a proprietary OS loaded on it?

Digital media ownership grants rights to content.

Does that mean DVD owners would have the right to download & burn Blu-ray content, if that became possible?

Muchly important to all of this:
How will these laws be enforced, and will violations of them be criminal or civil? What's the crime and penalty for reselling a $5 ebook for $2.50?

Nightmare. What you're proposing is not a simple tweaking of digital legalities; it's a change in the basic nature of property law.

It's possible to get around that, by having *future* digital sales all be licenses instead of sales, in which case they can set their terms. However, in order to do that, they have to fit the legal definition of a "license," which requires more than a EULA that says "you may not resell this." They'd have to tell customers they're only buying usage rights, and define the terms, including how long the license lasts (in the US, it can't be "forever until we change our minds"), and the other terms under which those rights can be revoked.

Some textbook sellers do this now. I have my doubts about it succeeding for mass-market ebooks.

[DawnFalcon]

Right - How about something which is 25% "digital". 5%? 1%? How much "digital" content does it need before you can't resell it? Because if it's a low percentage, well, yea...

Those textbook sellers generally /do/ give a big price cut in return for effectively renting the textbooks. Which is how it should be!

[riemann42]

Originally Posted by DawnFalcon

riemann42 - You are wrong. The law says I can resell, and your quoting the line of big media lobbying organisations is plainly and simply factually incorrect.

I'm sorry that I seemed to have implied a statement of fact. I did not intend to do this, as I am not a Lawyer and not qualified to comment on existing law. It was never my intent at all to suggest that what your were saying was incorrect, so I apologize if it came out that way.

Both you and Elfwreck make excellent points on the practicality of what I am suggesting.

I am mildly offended that my position is categorized as being in favor of Big Media. I am in favor of a legal framework that encouraged authors and artists to participate in a system to insure that they are compensated.

Right now, at least in the States, our law is written by large corporations, rather than artists and consumers. Right now, consumers have very little rights to the Digital Media they purchase. If it is protected by DRM, we have very little rights. It is a criminal act to remove this DRM. In effect, most of the 'Big Media' ebooks have no right of resale.

I want to not be a criminal because I use Linux. I want to buy media from the store with the lowest price. I will confess to a strong bias against used CDs and Bookstores, as I strongly feel that the artist or author deserves to be compensated at each sale. If we disagree on this point, then I do not believe we can ever come to an agreement, and that's OK.

Also, I would argue that considering Digital Content different than physical content is not new and radical. I argue that considering said property to be equivalent to physical property is what is radical. Software sales have long since created a wealth of case law on this issue, but as IANAL.

As food for thought, here are the terms of use at Fictionwise:

All eBooks at Fictionwise.com are the exclusive property of the publisher or its licensors and is protected by copyright and other intellectual property laws. The download of these product(s) is intended for the Fictionwise Member's personal and noncommercial use. Any other use of eBooks downloaded from Fictionwise.com is strictly prohibited. Users may not modify, transmit, publish, participate in the transfer or sale of, reproduce, create derivative works from, distribute, perform, display, or in any way exploit, any of the content of these product(s), in whole or in part. By downloading Fictionwise eBooks, the User hereby acknowledges and agrees to these terms.

If you disagree with the above terms, agreed to at time of sale, I encourage you to file a lawsuit and nullify these terms.

[riemann42]

I just reread the above Terms for Fictionwise. They are effectively selling a license. They are selling the ability to download the file.

[DawnFalcon]

Originally Posted by riemann42

I am mildly offended that my position is categorized as being in favor of Big Media. I am in favor of a legal framework that encouraged authors and artists to participate in a system to insure that they are compensated.

I look at the implications of changes, rather than just the wording of the changes.

The right to remove DRM for personal use is not something you specifically mentioned, and it'd be a different right to that simply for format shifting and so on.

As food for thought, here are the terms of use at Fictionwise:

Not worth the electrons used to display that under EU law. EU law is quite clear on the point that Fictionwise are selling the books (since that is how they are presented, as sales), and all a user's normal rights, including that of exhaustion doctrine (and hence resale), apply.

More, that agreement breaches the Unfair Terms in Consumer Contracts Regulations 1999, sample terms 2.3.2, 2.8.3, 14.2.1, 17.1, 18.3.1, 18.4.1, 18.6.1, 18.8.1, 18.8.2, 18.8.3, 19.1, 19.3, 19.5, 19.6, 19.7, 19.9, 19.10, 19.12, 19.14 and potentially 6.1.2.

(Darn, it breaches a LOT for covering such a narrow area, lmao - although 95%+ of contracts fail the 19.x segments about Plain English)

If you disagree with the above terms, agreed to at time of sale, I encourage you to file a lawsuit and nullify these terms.

Don't need to. The law's clear. If Fictionwise tried to sue an EU citizen for breach, the case would be tossed in a heartbeat (If the IP owner brought a civil IP case, that might be considered, but that EULA is trashcan material).


Note that the text on the "add to cart" button is "ready to buy?", this would almost certainly (it has quite a few precedents) be held to be the controlling text as regards sale vs licence.

[Elfwreck]

Originally Posted by riemann42

I just reread the above Terms for Fictionwise. They are effectively selling a license. They are selling the ability to download the file.

The EULA is written like a license, but the transaction doesn't act like one.

In the US, the biggest difference between a license and a sale is time: licenses are temporary; sales are permanent. If the customer gets to keep it forever, it's very very hard to prove in court that it was a "license." Also, the site says "ready to buy? Add to cart" not "ready to license?"--that (1) leans towards it legally being a purchase and (2) leans toward *deliberate fraud* if they want to claim it's legally a license.

[PKFFW]

Originally Posted by riemann42

I am mildly offended that my position is categorized as being in favor of Big Media. I am in favor of a legal framework that encouraged authors and artists to participate in a system to insure that they are compensated.

Don't worry too much about it riemann, anyone who disagrees with DF is categoried as a big media shill. I wouldn't take it personally.

Originally Posted by riemann42

Also, I would argue that considering Digital Content different than physical content is not new and radical. I argue that considering said property to be equivalent to physical property is what is radical. Software sales have long since created a wealth of case law on this issue, but as IANAL.

Seems ironic to me to that on the one hand many argue digital media is different to physical property and should be treated differently when it comes to creators rights and copyright infringement but then they argue it should be treated the same when it comes to their right of resale.

An interesting duality I think.

Cheers,
PKFFW

[Iphinome]

Originally Posted by riemann42

I am mildly offended that my position is categorized as being in favor of Big Media. I am in favor of a legal framework that encouraged authors and artists to participate in a system to insure that they are compensated.

Right now, at least in the States, our law is written by large corporations, rather than artists and consumers. Right now, consumers have very little rights to the Digital Media they purchase. If it is protected by DRM, we have very little rights. It is a criminal act to remove this DRM. In effect, most of the 'Big Media' ebooks have no right of resale.

I want to not be a criminal because I use Linux. I want to buy media from the store with the lowest price. I will confess to a strong bias against used CDs and Bookstores, as I strongly feel that the artist or author deserves to be compensated at each sale. If we disagree on this point, then I do not believe we can ever come to an agreement, and that's OK.

Insure they are compensated? That would be the Marxist view that work adds value, personally I am not a communist so I oppose the idea that artists deserve pay simply for creating. Now a system that allowed them the chance to try and make some money in an open market for their creations sounds good, of course the problem with this is unless it sells for a big pile of money the first person to get their hands on it will make copies and sell them cheaper or give them away because they don't have the development costs the artists did, no investment in pizza and caffeine.

Perhaps if we had some sort of system to promote the progress of science and the useful arts that granted a short term monopoly to the artists just long enough for them to make a profit if one can be made but not so long as to prevent them from needing to make more art to keep food on the table. Seven years sounds nice and maybe then a renewal for another 7 if they're still alive, of course that could be a little short. 28 years? Maybe as high as 56? 56 years is a long time and you have to figure if someone can't turn a profit in that time they're doing something wrong and just aren't going to make a profit. At the same time or I should say in time they lose that monopoly as a sort of tax they pay to get that monopoly in the first place the artist would have to lose control to the people who were nice enough give them protection. Odd idea probably not workable but something to think on.

As to your opposition to used book and cd stores do you also feel an artist should be payed if someone resells a painting? A patent holder if you resell your lawnmower? How about a royalty when you give away a book you no longer want or a pen you no longer want? The idea is absurd. Would you ever really own anything unless its so old nothing in it is covered by some monopoly granted for the sake of progress? And where would there be any progress when you can't freely build on anything that came before without having to pay just to add your own idea?

I don't want to pick on you here but a big problem here and elsewhere is taking one idea that sounds good and not thinking it through to everything affected by it. You see quite a bit of it in politics when some idea is popular or unpopular and people get all up in arms for or against it without understanding that said tax cut will take away really useful x, or banning $unpopular_thing by extension allows the banning of $thing_unpopular_with_crazy_fringe_group and then $thing_you_like_but_might_one_day_have_a_bad_effec t_on_random_child_maybe.

[DawnFalcon]

PKFFW -

There are plenty of people who disagree with me, some constantly, who I don't call shills. If you don't want to be called a shill, don't act like one and consider the consequences of the changes you're calling for - many "reformers" are inadvertently shilling for big media because of sloppy wording...it's a lawyer's game. Also, you might not want to quote RIAA press releases in future, fyi, if you're trying to be subtle.

And you're the one arguing that they should have less rights based on the medium, not me. The law here simply doesn't make that differentiation for books and ebooks. The duality is entirely on your part.


Iphinome? I think you stopped reading at the first part of that sentence. He said "compensated for every sale". Which is reasonable.

"do you also feel an artist should be payed if someone resells a painting?"

Europe has that right now, the "artist resale right". It's extremely controversial.

[riemann42]

Originally Posted by Elfwreck

The EULA is written like a license, but the transaction doesn't act like one.

In the US, the biggest difference between a license and a sale is time: licenses are temporary; sales are permanent. If the customer gets to keep it forever, it's very very hard to prove in court that it was a "license." Also, the site says "ready to buy? Add to cart" not "ready to license?"--that (1) leans towards it legally being a purchase and (2) leans toward *deliberate fraud* if they want to claim it's legally a license.

Interesting. Good point.

However, I think that "Ready to buy?" still works for a License, as in, "Ready to buy your license?"

Also, most Software "Licenses" are a lifetime grant (at least in the case of the MS Licenses, whose terms I have gotten a taste of lately). If however, as you state, a License needs to be temporary, these terms are invalid, or at least subject to some discussion. The legal terms for a transfer of ownership of a company are complicated enough already...

I guess, aside from the legal question, I am curious if anyone else agrees with me that there is an ethical and practical issue.

I think that reselling an eBook is generally not appropriate. It robs the author of revenue, and is an extremely difficult transaction to perform considering that the seller must delete all copies, and inform all online merchants holding a copy in the seller's name that they no longer have rights to the download.

Of course, I think reselling a physical book is inappropriate as well. I do not, however, have a problem with giving it away, as this does not usually equate to a lost sale for the author, so there you go. How do we do that with a digital file?

Of course if the Author is Dead, and her poor widower is dead as well, and her children were a bunch of brats who need to learn to make their own damn living, then I can see a good reason to resell, but that's a Copyright issue and a whole different ethical (and sadly legal...) debate.

Also, outside of theory, have any of you actually resold an eBook? If so, how did you handle issues such as DRM, informing original seller, etc?


P.S. I hate rereading my previous posts and noticing the glaring grammar errors and non-sequiturs.

[DawnFalcon]

Originally Posted by riemann42

Also, outside of theory, have any of you actually resold an eBook? If so, how did you handle issues such as DRM, informing original seller, etc?

I have. Quite a few times. Mostly RPG game books rather than novels, mind you, but still.

DRM? Don't buy DRM'ed books. So not an issue.

And informing the origional seller? Why would I do that? I'd no more tell the original seller than I would when I sold a physical item on, unless there were issues such as notification for warantee. It's my responsibility to ensure that I've deleted all my copies of the book, as well. The merchant does not enter the equation, exhaustion of rights applies!

It's no different from selling anything else, except the need to make sure your backups are purged of the file.

Your view, which is badly at odds with societal norms and law, completely against resale is at least consistent, but I'd argue highly damaging - especially to those on lower incomes. Incidentally, is it only IP you have an objection to resale of?

[Iphinome]

Originally Posted by DawnFalcon

Iphinome? I think you stopped reading at the first part of that sentence. He said "compensated for every sale". Which is reasonable.

"do you also feel an artist should be payed if someone resells a painting?"

Europe has that right now, the "artist resale right". It's extremely controversial.

I'd have to disagree with that one it tramples on first sale and think about all the things that are copyrighted, sure books movies and music but also maps magazines comic books photos sculpture. There has to be a pont where you own what you pay to posses indefinitely.

[DawnFalcon]

Oh you do own the pictures. It's a transaction tax on resale. If it impacted the rights of the owner in any other way, it would never have passed.

Bear in mind most countries outside the USA have Moral Rights, and your rights to a work of art are not absolute within the creator's lifetime anyway.

[riemann42]

Originally Posted by Iphinome

As to your opposition to used book and cd stores do you also feel an artist should be payed if someone resells a painting? A patent holder if you resell your lawnmower? How about a royalty when you give away a book you no longer want or a pen you no longer want? The idea is absurd. Would you ever really own anything unless its so old nothing in it is covered by some monopoly granted for the sake of progress? And where would there be any progress when you can't freely build on anything that came before without having to pay just to add your own idea?

Hmmm. Wow. I didn't intend to go that far. My opposition to used books and CDs is more of an ethical opposition than a legal one.

As far as considering my ideas Marxist, I find that interesting, and difficult to parse. I will think about this, and see if I can figure out how agreeing that an artist should be compensated for the sale of his/her work is Marxist. When I understand it, I will excise all such ideas from my brain so that when I testify before congress I can say I am not a communist, and mean it.

Seriously, however, you raise many valid points, but some of them really are a straw man argument. They do, however, force me to be a little more specific about my position:

In the case of a work of Literature, art, etc. that is covered by copyright and easily copied with little to no marginal cost, and has no value other than the content, be it words, music, or pictures, then each consumer, or at least each household, who wishes to read, listen, or view said content should reasonably be expected to compensate the original artist if the original artist is still accepting compensation by way of selling said work, be it in physical or electronic form.

In short, I like my favorite authors, and want to support them. I want you to support your favorite authors as well. Oh that's it! There's the Marxism.

Finally, I am not making a legal argument! I'll leave that to DawnFalcon.

[riemann42]

Originally Posted by DawnFalcon

And informing the origional seller? Why would I do that? I'd no more tell the original seller than I would when I sold a physical item on, unless there were issues such as notification for warantee. It's my responsibility to ensure that I've deleted all my copies of the book, as well. The merchant does not enter the equation, exhaustion of rights applies!

I only meant in the case where you still had Download Rights. My concern was that if, from the perspective of the original seller, the product sold was right to download versus the actual download. If this is the case, then the original seller has the right to be informed that you have given up your right to download the product. I am guessing that is not the case in the sales you have participated in, which is cool.